|
| |
|
(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 |
| |
| |
(d) | to every member of the company of whose address he is |
| |
| |
(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 |
| |
(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 |
| |
| |
(3) | In sub-paragraph (2) ‘enactment’ has the same meaning as in the |
| 30 |
| |
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 |
| |
| 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 |
|
| |
|
| |
|
| |
“(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 |
| |
| |
(2A) | The persons who may apply to the court under sub-paragraph (2) |
| |
| |
(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 |
| |
| |
(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 |
| |
| |
| |
| |
| 30 |
| in a way that is inconsistent with the achievement of the objective |
| |
of the energy administration as quickly and as efficiently as is |
| |
| |
(9) | Before the making of an order of the kind mentioned in sub- |
| |
| 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 |
| |
| |
| 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; |
| |
| |
|
| |
|
| |
|
(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 |
| |
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 |
| |
18 (1) | In paragraph 79 (end of administration), for sub-paragraphs (1) and (2) |
| |
| |
“(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 |
| |
| |
(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 |
| |
| |
(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 |
| |
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, |
| |
| |
21 | In paragraph 87 (resignation of administrator), for sub-paragraph (2)(a) to |
| 45 |
(d) substitute “by notice in writing to the court”. |
| |
|
| |
|
| |
|
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 |
| |
“(1) | The court may replace the energy administrator on an application |
| |
| |
(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 |
| |
| |
(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- |
| |
| 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 |
| |
| |
(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 |
| |
| |
(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 |
| |
| |
(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 |
| |
| |
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- |
| |
| 45 |
(a) | omit the words from the beginning to “order”; |
| |
|
| |
|
| |
|
(b) | for paragraph (a) substitute— |
| |
“(a) | the Secretary of State, |
| |
| |
(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) |
| |
| |
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 |
| |
| |
| ‘GEMA’ means the Gas and Electricity Markets |
| 30 |
| |
(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 |
| |
| 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.” |
| |
|
| |
|
| |
|
| |
Further Schedule B1 modifications for unregistered companies |
| |
| |
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 |
| |
| 10 |
(2) | An order under this paragraph may include modifications of paragraphs 35 |
| |
| |
(3) | An order under this paragraph is subject to the negative resolution |
| |
| |
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 |
| |
| 20 |
| |
35 | In the case of an unregistered company— |
| |
(a) | paragraphs 42(2), 83 and 84 of Schedule B1 to the 1986 Act do not |
| |
| |
(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 |
| |
| 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 |
| |
| 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; |
| |
|
| |
|
| |
|
(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 |
| |
| |
(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 |
| |
| 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 |
| |
| |
(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 |
| |
(a) | in the case of a person mentioned in sub-paragraph (1)(a), |
| |
the period while the company is in energy administration; |
| |
| |
(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 |
| |
| |
|
| |
|