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Postal Services Bill


Postal Services Bill
Schedule 10 — Conduct of postal administration
Part 2 — Further modifications of Schedule B1 to 1986 Act: foreign companies

110

 

(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

companies), and

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

have effect as if—

(a)   

for sub-paragraph (1) there were substituted—

    “(1)  

Where a postal administration order takes effect in respect

of a company—

(a)   

a person appointed to perform functions

30

equivalent to those of an administrative receiver,

and

(b)   

if the postal administrator so requires, a person

appointed to perform functions equivalent to those

of a receiver,

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

in the United Kingdom.

     (1A)  

That period is—

40

(a)   

in the case of a person mentioned in sub-paragraph

(1)(a), the period while the company is in postal

administration, and

(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

functions.”, and

(b)   

sub-paragraphs (2) to (4) were omitted.

 
 

Postal Services Bill
Schedule 10 — Conduct of postal administration
Part 3 — Other modifications

111

 

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)

there were substituted—

“(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”.

Part 3

Other modifications

General modifications

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

paragraph.

25

      (2)  

The references are those (however expressed) which are or include

references to—

(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

an administration order,

(b)   

a postal administration order corresponds to an administration

order,

(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

administration,

(e)   

entering into postal administration corresponds to entering into

administration, and

 
 

Postal Services Bill
Schedule 10 — Conduct of postal administration
Part 3 — Other modifications

112

 

(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

of this Schedule.

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,

and

(b)   

the order or direction is consistent with the objective of the

postal administration.

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

Act 2011.”

44         

Section 6 (challenge of decisions in relation to voluntary arrangements) is to

30

have effect as if—

(a)   

in subsection (2), for “this section” there were substituted

“subsection (1)”,

(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

the court may be made—

(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

administration.”,

 
 

Postal Services Bill
Schedule 11 — Postal transfer schemes

113

 

(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

modifications of—

15

(a)   

the 1986 Act, or

(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

procedure.

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).

Schedule 11

Section 71

 

Postal transfer schemes

Application of 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

company”).

40

 
 

Postal Services Bill
Schedule 11 — Postal transfer schemes

114

 

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

under this Schedule.

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

the scheme, and

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

approving it.

      (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

paragraph are ones—

(a)   

to which the old company and the new company (or companies)

have consented, or

(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

 
 

Postal Services Bill
Schedule 11 — Postal transfer schemes

115

 

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

in confidence.

      (9)  

That duty is enforceable in civil proceedings by the Secretary of State—

5

(a)   

for an injunction,

(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

country or territory.

      (2)  

The property, rights and liabilities that may be transferred by a postal

20

transfer scheme include—

(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

relates.

      (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—

 
 

Postal Services Bill
Schedule 11 — Postal transfer schemes

116

 

(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

a new company.

      (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

any of them.

      (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

and a new 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

provider, and

(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

company was subject.

      (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

 
 

 
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