|
| |
|
(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 |
| |
| 5 |
(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 |
| |
question as a result of section 66(4) above. |
| 10 |
(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 |
| |
UK affairs, business and property, |
| 15 |
(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) | references to premises let to the company are to be read as references |
| 20 |
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 | Paragraph 41 of Schedule B1 to the 1986 Act (dismissal of receivers) is to |
| 25 |
| |
(a) | for sub-paragraph (1) there were substituted— |
| |
“(1) | Where a postal administration order takes effect in respect |
| |
| |
(a) | a person appointed to perform functions |
| 30 |
equivalent to those of an administrative receiver, |
| |
| |
(b) | if the postal administrator so requires, a person |
| |
appointed to perform functions equivalent to those |
| |
| 35 |
| 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 |
| |
| |
| 40 |
(a) | in the case of a person mentioned in sub-paragraph |
| |
(1)(a), the period while the company is in postal |
| |
| |
(b) | in the case of a person mentioned in sub-paragraph |
| |
(1)(b), during so much of that period as is after the |
| 45 |
date on which the person is required by the postal |
| |
administrator to refrain from performing |
| |
| |
(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 | Paragraph 44(7) of Schedule B1 to the 1986 Act (proceedings to which |
| 5 |
interim moratorium does not apply) is to have effect as if for paragraph (d) |
| |
| |
“(d) | the carrying out of functions by a person who (whenever |
| |
appointed) has functions equivalent to those of an |
| |
administrative receiver of the company.” |
| 10 |
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 |
| |
United Kingdom or to its property in the United Kingdom”, and |
| 15 |
(b) | in sub-paragraph (2)(b), after “instrument” there were inserted “or |
| |
by the law of the place where the company is incorporated”. |
| |
| |
| |
| 20 |
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 |
| |
| 25 |
(2) | The references are those (however expressed) which are or include |
| |
| |
(a) | an administrator appointed by an administration order, |
| |
(b) | an administration order, |
| |
(c) | an application for an administration order, |
| 30 |
(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) | a postal administrator corresponds to an administrator appointed by |
| 35 |
| |
(b) | a postal administration order corresponds to an administration |
| |
| |
(c) | an application for a postal administration order corresponds to an |
| |
application for an administration order, |
| 40 |
(d) | a company in postal administration corresponds to a company in |
| |
| |
(e) | entering into postal administration corresponds to entering into |
| |
| |
|
| |
|
| |
|
(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 |
| |
| |
41 (1) | Paragraph 40, in its application to section 1(3) of the 1986 Act, does not |
| |
entitle the postal administrator of an unregistered company to make a |
| 5 |
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 |
| |
company which is a universal service provider. |
| 10 |
(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 |
| |
postal administration with the following modifications. |
| 15 |
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) | the court has given the Secretary of State or the Office of |
| 20 |
Communications a reasonable opportunity of making |
| |
representations to it about the proposed order or direction, |
| |
| |
(b) | the order or direction is consistent with the objective of the |
| |
| 25 |
(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 |
| |
| |
44 | Section 6 (challenge of decisions in relation to voluntary arrangements) is to |
| 30 |
| |
(a) | in subsection (2), for “this section” there were substituted |
| |
| |
(b) | after that subsection there were inserted— |
| |
“(2AA) | Subject to this section, where a voluntary arrangement in |
| 35 |
relation to a company in postal administration is approved at |
| |
the meetings summoned under section 3, an application to |
| |
| |
(a) | by the Secretary of State, or |
| |
(b) | with the consent of the Secretary of State, by the |
| 40 |
Office of Communications, |
| |
| on the ground that the voluntary arrangement is not |
| |
consistent with the achievement of the objective of the postal |
| |
| |
|
| |
|
| |
|
(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) | In this section “in postal administration” and “objective of the |
| 5 |
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 |
| |
paragraph 13(1)(e) of Schedule B1 is to include section 69(1)(e) of this Act. |
| 10 |
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 |
| |
| 15 |
| |
(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, |
| |
| as the Secretary of State considers appropriate in relation to any provision |
| 20 |
made by or under this Part. |
| |
(3) | An order under this paragraph is subject to affirmative resolution |
| |
| |
Interpretation of Part 3 of Schedule |
| |
47 | In this Part of this Schedule— |
| 25 |
“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 |
| |
read in accordance with Schedule B1 to the 1986 Act (as applied by |
| 30 |
Part 1 of this Schedule). |
| |
| |
| |
| |
| |
1 | This Schedule applies if— |
| 35 |
(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 |
| |
67(3)) be made to another company (or companies) (a “new |
| |
| 40 |
|
| |
|
| |
|
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 |
| |
| |
Making of postal transfer schemes |
| |
3 (1) | The old company may for the purpose of giving effect to the proposed |
| 5 |
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 |
| |
| 10 |
(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) | In the case of a proposed transfer falling within section 67(4)(a) (transfer to |
| 15 |
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 |
| |
| |
(2) | After a postal transfer scheme has taken effect— |
| 20 |
(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) | The only modifications that may be made by the Secretary of State under this |
| 25 |
| |
(a) | to which the old company and the new company (or companies) |
| |
| |
(b) | in the case of a proposed transfer falling within section 67(4)(a), to |
| |
which the old company has consented. |
| 30 |
(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) | In deciding whether to approve or modify a postal transfer scheme, the |
| 35 |
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) | Before approving or modifying a postal transfer scheme, the Secretary of |
| 40 |
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 |
| |
| |
(9) | That duty is enforceable in civil proceedings by the Secretary of State— |
| 5 |
| |
(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. |
| |
Identification of property etc to be transferred |
| 10 |
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. |
| |
Property, rights and liabilities that may be transferred |
| 15 |
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 |
| |
| |
(2) | The property, rights and liabilities that may be transferred by a postal |
| 20 |
| |
(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 |
| |
occurring before that time, and |
| 25 |
(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, |
| |
liability or interference with any interest or right as there would otherwise |
| 30 |
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 |
| |
| |
(4) | In sub-paragraph (3) the reference to any provision is a reference to any |
| |
provision, whether under an enactment or agreement or otherwise. |
| 35 |
(5) | Sub-paragraph (3) has effect where shares in a subsidiary of the old |
| |
company are transferred as if the reference to the terms on which that |
| |
company is entitled or subject to anything to which the transfer relates |
| |
included a reference to the terms on which the subsidiary is entitled or |
| |
subject to anything immediately before the transfer takes effect. |
| 40 |
Dividing and modifying the old company’s property, rights and liabilities |
| |
7 (1) | A postal transfer scheme may contain provision— |
| |
|
| |
|
| |
|
(a) | for the creation, in favour of the old company or a new company, of |
| |
an interest or right in or in relation to property or rights transferred |
| |
in accordance with the scheme, |
| |
(b) | for giving effect to a transfer by the creation, in favour of a new |
| |
company, of an interest or right in or in relation to property or rights |
| 5 |
retained by the old company, and |
| |
(c) | for the creation of new rights and liabilities (including rights of |
| |
indemnity and duties to indemnify) as between the old company and |
| |
| |
(2) | A postal transfer scheme may contain provision for the creation of rights and |
| 10 |
liabilities for the purpose of converting arrangements between different |
| |
parts of the old company’s undertaking into a contract— |
| |
(a) | between different new companies, or |
| |
(b) | between a new company and the old company. |
| |
(3) | A postal transfer scheme may contain provision— |
| 15 |
(a) | for rights and liabilities to be transferred so as to be enforceable by or |
| |
against more than one new company or by or against both the new |
| |
company and the old company, and |
| |
(b) | for rights and liabilities enforceable against more than one person in |
| |
accordance with provision falling within paragraph (a) to be |
| 20 |
enforceable in different or modified respects by or against each or |
| |
| |
(4) | A postal transfer scheme may contain provision for interests, rights or |
| |
liabilities of third parties in relation to anything to which the scheme relates |
| |
to be modified in the manner set out in the scheme. |
| 25 |
(5) | The reference here to third parties is to persons other than the old company |
| |
| |
(6) | Paragraph 6(2)(c) and (3) apply to the creation of interests and rights as they |
| |
apply to the transfer of interests and rights. |
| |
Transfer of regulatory conditions etc |
| 30 |
8 (1) | A postal transfer scheme may contain provision— |
| |
(a) | for a new company to be treated for all purposes as having been |
| |
designated by OFCOM under section 34 as a universal service |
| |
| |
(b) | for the transfer to a new company of the whole or part of any |
| 35 |
obligation contained in a regulatory condition to which the old |
| |
| |
(2) | The reference to the transfer of a part of any obligation includes the transfer |
| |
of any obligation so far as relating to an area specified or described in |
| |
provision made by the scheme. |
| 40 |
(3) | A postal transfer scheme may, in consequence of provision made under sub- |
| |
paragraph (1), make modifications of regulatory conditions to which the old |
| |
company or new company are subject. |
| |
Transfer etc of statutory functions |
| |
9 (1) | A postal transfer scheme may contain provision— |
| 45 |
|
| |
|