Energy Bill [HL]

House of Commons

Session 2003 - 04
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Other Bills before Parliament

Energy Bill [HL]

Energy Bill [HL]
Schedule 20 — Conduct of energy administration
Part 2 — Modifications of Schedule B1
248

      (2)
After sub-paragraph (4)(a) of that paragraph insert—
“(aa)
to the Secretary of State and to GEMA,”.
11
For paragraph 54 (revision of administrator’s proposals) substitute—
“54   (1)
The energy administrator of a company may on one or more
occasions revise the proposals included in the statement made
5
under paragraph 49 in relation to the company.
      (2)
Where the energy administrator thinks that a revision by him is
substantial, he must send a copy of the revised proposals—
(a)
to the registrar of companies,
(b)
to the Secretary of State and to GEMA,
10
(c)
to every creditor of the company of whose claim and
address he is aware, and
(d)
to every member of the company of whose address he is
aware.
      (3)
A copy sent in accordance with sub-paragraph (2) must be sent
15
within the prescribed period.
      (4)
The energy administrator is to be taken to have complied with
sub-paragraph (2)(d) if he publishes, in the prescribed manner, a
notice undertaking to provide a copy of the revised proposals free
of charge to any member of the company who applies in writing
20
to a specified address.
      (5)
The energy administrator commits an offence if he fails without
reasonable excuse to comply with this paragraph.”
12
In paragraph 60 (powers of an administrator), the existing text is to be sub-
paragraph (1) and after that sub-paragraph insert—
25
     “(2)
The energy administrator of a company has the power to act on
behalf of the company for the purposes of any enactment or
subordinate legislation which confers a power on the company, or
imposes a duty on it.
      (3)
In sub-paragraph (2) ‘enactment’ has the same meaning as in the
30
Energy Act 2004.”
13    (1)
In paragraph 68 (management duties of an administrator), for sub-
paragraph (1)(a) to (c) substitute “the proposals as—
(a)
set out in the statement made under paragraph 49 in
relation to the company, and
35
(b)
from time to time revised under paragraph 54,

for achieving the objective of the energy administration.”
      (2)
For sub-paragraph (3)(a) to (d) of that paragraph substitute “the directions
are consistent with the achievement of the objective of the energy
administration”.
40
14
In paragraphs 71(3)(b) and 72(3)(b) (handling of secured property), for
“market” substitute “the appropriate”.
15
In paragraph 73(3) (which contains a reference to the administrator’s
proposals), for “or modified” substitute “under paragraph 54”.
16    (1)
In paragraph 74 (challenge to administrator’s conduct), for sub-paragraph
45

Energy Bill [HL]
Schedule 20 — Conduct of energy administration
Part 2 — Modifications of Schedule B1
249

(2) substitute—
     “(2)
Where a company is in energy administration, a person
mentioned in sub-paragraph (2A) may apply to the court claiming
that the energy administrator is conducting himself in a manner
preventing the achievement of the objective of the energy
5
administration as quickly and efficiently as is reasonably
practicable.
     (2A)
The persons who may apply to the court under sub-paragraph (2)
are—
(a)
the Secretary of State;
10
(b)
with the consent of the Secretary of State, GEMA;
(c)
a creditor or member of the company.”
      (2)
In sub-paragraph (6) of that paragraph, for paragraphs (a) to (c) substitute—
“(a)
a voluntary arrangement approved under Part 1, or
(b)
a compromise or arrangement sanctioned under section
15
425 of the Companies Act (compromise with creditors and
members).”
      (3)
After that sub-paragraph insert—
     “(7)
In the case of a claim made otherwise than by the Secretary of State
or GEMA, the court may grant a remedy or relief or make an order
20
under this paragraph only if it has given the Secretary of State or
GEMA a reasonable opportunity of making representations about
the claim and the proposed remedy, relief or order.
      (8)
The court may grant a remedy or relief or make an order on an
application under this paragraph only if it is satisfied, in relation
25
to the matters that are the subject of the application, that the
energy administrator—
(a)
is acting,
(b)
has acted, or
(c)
is proposing to act,
30

in a way that is inconsistent with the achievement of the objective
of the energy administration as quickly and as efficiently as is
reasonably practicable.
      (9)
Before the making of an order of the kind mentioned in sub-
paragraph (4)(d)—
35
(a)
the court must notify the energy administrator of the
proposed order and of a period during which he is to have
the opportunity of taking steps falling within sub-
paragraphs (10) to (12); and
(b)
the period notified must have expired without the taking
40
of such of those steps as the court thinks should have been
taken;

and that period must be a reasonable period.
     (10)
In the case of a claim under sub-paragraph (1)(a), the steps
referred to in sub-paragraph (9) are—
45
(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 interests;
and

Energy Bill [HL]
Schedule 20 — Conduct of energy administration
Part 2 — Modifications of Schedule B1
250

(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 the
interests to which the claim relates are not unfairly harmed.
5
     (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 achievement of
the objective of the energy administration as quickly and
as efficiently as is reasonably practicable;
10
(b)
remedying the consequences of the energy administrator
having acted in such a manner; and
(c)
steps for ensuring that there is no repetition of conduct
preventing the achievement of the objective of the energy
administration as quickly and as efficiently as is
15
reasonably practicable.”
17
In paragraph 75(2) (misfeasance), after paragraph (b) insert—
“(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 energy
20
administrators,”.
18    (1)
In paragraph 79 (end of administration), for sub-paragraphs (1) and (2)
substitute—
     “(1)
On an application made by a person mentioned in sub-paragraph
(2), the court may provide for the appointment of an energy
25
administrator of a company to cease to have effect 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 GEMA, or
30
(c)
with the consent of the Secretary of State, by the energy
administrator.”
      (2)
Omit sub-paragraph (3) of that paragraph.
19
In paragraph 83(3) (notice to registrar when moving to voluntary
liquidation), after “may” insert “, with the consent of the Secretary of State
35
or of GEMA,”.
20    (1)
In paragraph 84 (notice to registrar when moving to dissolution), in sub-
paragraph (1), for “to the registrar of companies” substitute—
“(a)
to the Secretary of State and to GEMA; and
(b)
if directed to do so by either the Secretary of State or
40
GEMA, to the registrar of companies.”
      (2)
Omit sub-paragraph (2) of that paragraph.
      (3)
In sub-paragraphs (3) to (6) of that paragraph, for “(1)”, wherever occurring,
substitute “(1)(b)”.
21
In paragraph 87 (resignation of administrator), for sub-paragraph (2)(a) to
45
(d) substitute “by notice in writing to the court”.

Energy Bill [HL]
Schedule 20 — Conduct of energy administration
Part 2 — Modifications of Schedule B1
251

22
In paragraph 89 (administrator ceasing to be qualified), for sub-paragraph
(2)(a) to (d) substitute “to the court”.
23
In paragraph 90 (filling vacancy in office of administrator), for “Paragraphs
91 to 95 apply” substitute “Paragraph 91 applies”.
24    (1)
In paragraph 91 (vacancies in court appointments), for sub-paragraph (1)
5
substitute—
     “(1)
The court may replace the energy administrator on an application
made—
(a)
by the Secretary of State;
(b)
with the consent of the Secretary of State, by GEMA; or
10
(c)
where more than one person was appointed to act jointly
as the energy administrator, by any of those persons who
remains in office.”
      (2)
Omit sub-paragraph (2) of that paragraph.
25
In paragraph 98 (discharge from liability on vacation of office), omit sub-
15
paragraphs (2)(b) and (3).
26    (1)
In paragraph 99 (charges and liabilities upon vacation of office by
administrator), in sub-paragraph (4), for the words from the beginning to
“cessation”, where first occurring, substitute “A sum falling within sub-
paragraph (4A)”.
20
      (2)
After that sub-paragraph insert—
“(4A)
A sum falls within this sub-paragraph if it is—
(a)
a sum payable in respect of a debt or liability arising out of
a contract that was entered into before cessation by the
former energy administrator or a predecessor;
25
(b)
a sum that must be repaid by the company in respect of a
grant that was made before cessation under section 162 of
the Energy Act 2004 as is mentioned in subsection (4) of
that section;
(c)
a sum that must be repaid by the company in respect of a
30
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 (4) of
section 163 of that Act in respect of an agreement to
35
indemnify made before cessation; or
(e)
a sum payable by the company under subsection (5) of
section 164 of that Act in respect of a guarantee given
before cessation.”
      (3)
In sub-paragraph (5) of that paragraph, for “(4)” substitute “(4A)(a)”.
40
27
In paragraph 100 (joint and concurrent administrators), omit sub-paragraph
(2).
28
In paragraph 101(3) (joint administrators), after “87 to” insert “91, 98 and”.
29    (1)
In paragraph 103 (appointment of additional administrators), in sub-
paragraph (2)—
45
(a)
omit the words from the beginning to “order”;

Energy Bill [HL]
Schedule 20 — Conduct of energy administration
Part 2 — Modifications of Schedule B1
252

(b)
for paragraph (a) substitute—
“(a)
the Secretary of State,
(aa)
GEMA, or”.
      (2)
After that sub-paragraph insert—
    “(2A)
The consent of the Secretary of State is required for an application
5
by GEMA for the purposes of sub-paragraph (2).”
      (3)
Omit sub-paragraphs (3) to (5) of that paragraph.
30
In paragraph 106 (penalties), omit sub-paragraph (2)(a), (b), (f), (g), (i) and (l)
to (n).
31
In paragraph 109 (references to extended periods), omit “or 108”.
10
32    (1)
In sub-paragraph (1) of paragraph 111 (interpretation)—
(a)
omit the definitions of “correspondence”, “holder of a qualifying
floating charge”, “market value”, “the purpose of administration”
and “unable to pay its debts”;
(b)
after the definition of “administrator” (as amended by virtue of
15
paragraph 4 of this Schedule) insert—

“‘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 energy administration;”
20
(c)
for the definition of “company” substitute—

“‘company’, ‘court’ and ‘energy administration
order’ have the same meanings as in Chapter 3 of
Part 4 of the Energy Act 2004;”
(d)
after the definition of “creditors’ meeting” insert—
25

“‘energy administration application’ means an
application to the court for an energy
administration order under Chapter 3 of Part 4 of
the Energy Act 2004;

‘GEMA’ means the Gas and Electricity Markets
30
Authority;”
(e)
after the definition of “hire purchase agreement” insert—

“‘objective’, in relation to an energy administration, is
to be construed in accordance with section 152 of
the Energy Act 2004;
35

‘prescribed’ means prescribed by energy
administration rules within the meaning of
Chapter 3 of Part 4 of the Energy Act 2004;”.
      (2)
After sub-paragraph (3) of that paragraph insert—
     “(4)
For the purposes of this Schedule a reference to an energy
40
administration order includes a reference to an appointment
under paragraph 91 or 103.”

Energy Bill [HL]
Schedule 20 — Conduct of energy administration
Part 3 — Further Schedule B1 modifications for unregistered companies
253

Part 3
Further Schedule B1 modifications for unregistered companies
Introductory
33    (1)
Where the provisions of Schedule B1 to the 1986 Act specified in paragraph
2 of this Schedule (as modified by Part 2 of this Schedule) have effect in
5
relation to an unregistered company, they shall do so subject to the further
modifications that are set out—
(a)
in this Part of this Schedule; or
(b)
in an order made by the Secretary of State for the purposes of this
paragraph.
10
      (2)
An order under this paragraph may include modifications of paragraphs 35
to 40.
      (3)
An order under this paragraph is subject to the negative resolution
procedure.
34
In paragraphs 35 to 40—
15
(a)
the provisions of Schedule B1 to the 1986 Act that are specified in
paragraph 2 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 2 of this
Schedule.
20
Modifications
35
In the case of an unregistered 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
25
of that Schedule apply only if the company is subject to a
requirement imposed by virtue of section 691(1) or 718 of the
Companies Act 1985 (c. 6); and
(c)
paragraph 61 of that Schedule does not apply if the company is a
non-GB company.
30
36    (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 construed in the case of
a non-GB company by reference to the limitation imposed upon the scope of
the energy administration order in question by virtue of section 151(4) of this
Act.
35
      (2)
Sub-paragraph (1) has effect, in particular, so that—
(a)
a power conferred, or duty imposed, upon the energy administrator
by or under the applicable provisions or Schedule 1 to the 1986 Act
is to be construed as being conferred or imposed only in relation to
the affairs and business of the company so far as carried on in Great
40
Britain and to its property in Great Britain;
(b)
references to the affairs, business or property of the company are to
be construed as references to its affairs or business so far as carried
on in Great Britain or to its property in Great Britain;

Energy Bill [HL]
Schedule 20 — Conduct of energy administration
Part 3 — Further Schedule B1 modifications for unregistered companies
254

(c)
references to goods in the company’s possession are to be construed
as references to goods in the possession of the company in Great
Britain;
(d)
references to premises let to the company are to be construed as
references to premises let to the company in Great Britain;
5
(e)
references to legal process instituted or continued against the
company or property of the company are to be construed as
references to such legal process relating to the affairs or business of
the company so far as carried on in Great Britain or to its property in
Great Britain.
10
37    (1)
Paragraph 41 of Schedule B1 to the 1986 Act (dismissal of receivers) has
effect in the case of a non-GB company as if—
(a)
for sub-paragraph (1) there were substituted the sub-paragraphs set
out in sub-paragraph (2) of this paragraph; and
(b)
sub-paragraphs (2) to (4) of that paragraph were omitted.
15
      (2)
The sub-paragraphs treated as substituted for paragraph 41(1) are—
     “(1)
Where an energy administration order takes effect in respect of a
company—
(a)
a person appointed to perform functions equivalent to
those of an administrative receiver, and
20
(b)
if the energy administrator so requires, a person appointed
to perform functions equivalent to those of a receiver,

shall refrain, during the period specified in sub-paragraph (1A),
from performing those functions in Great Britain or in relation to
any of the company’s property in Great Britain.
25
     (1A)
That period is—
(a)
in the case of a person mentioned in sub-paragraph (1)(a),
the period while the company is in energy administration;
and
(b)
in the case of a person mentioned in sub-paragraph (1)(b),
30
during so much of that period as is after the date on which
he is required by the energy administrator to refrain from
performing his functions.”
38
Paragraph 43(6A) of Schedule B1 to the 1986 Act (moratorium on
appointment to receiverships) has effect in the case of a non-GB company as
35
if for “An administrative receiver” there were substituted “A person with
functions equivalent to those of an administrative receiver”.
39
Paragraph 44(7) of Schedule B1 to the 1986 Act (proceedings to which
interim moratorium does not apply) has effect in the case of a non-GB
company as if for paragraph (d) there were substituted—
40
“(d)
the carrying out of his functions by a person who
(whenever his appointment) has functions equivalent to
those of an administrative receiver of the company.”
40
Paragraph 64 of Schedule B1 to the 1986 Act (general powers of
administrator) has effect in the case of a non-GB company as if—
45
(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 Great Britain or to its property in Great
Britain”; and