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Energy Bill [HL]


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

247

 

      (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

248

 

(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

249

 

(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

250

 

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 158 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 159 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 160 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

251

 

(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 3 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 3 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 148 of

the Energy Act 2004;

35

           

‘prescribed’ means prescribed by energy

administration rules within the meaning of

Chapter 3 of Part 3 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

252

 

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 147(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

253

 

(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

 

 

 
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