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Postal Services Bill


Postal Services Bill
Part 4 — Special administration regime

44

 

Restrictions on other insolvency procedures

72      

Winding-up orders

(1)   

This section applies if a person other than the Secretary of State petitions for the

winding-up of a company which is a universal service provider.

(2)   

The court is not to exercise its powers on a winding-up petition unless—

5

(a)   

notice of the petition has been served on the Secretary of State and

OFCOM, and

(b)   

a period of at least 14 days has elapsed since the service of the last of

those notices to be served.

(3)   

If an application for a postal administration order in relation to the company is

10

made to the court in accordance with section 68(1) before a winding-up order

is made on the petition, the court may exercise its powers under section 69

(instead of exercising its powers on the petition).

(4)   

References in this section to the court’s powers on a winding-up petition are

to—

15

(a)   

its powers under section 125 of the 1986 Act (other than its power of

adjournment), and

(b)   

its powers under section 135 of the 1986 Act.

73      

Voluntary winding up

(1)   

A company which is a universal service provider has no power to pass a

20

resolution for voluntary winding up without the permission of the court.

(2)   

Permission may be granted by the court only on an application made by the

company.

(3)   

The court is not to grant permission unless—

(a)   

notice of the application has been served on the Secretary of State and

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OFCOM, and

(b)   

a period of at least 14 days has elapsed since the service of the last of

those notices to be served.

(4)   

If an application for a postal administration order in relation to the company is

made to the court in accordance with section 68(1) after an application for

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permission under this section has been made and before it is granted, the court

may exercise its powers under section 69 (instead of granting permission).

(5)   

In this section “a resolution for voluntary winding up” has the same meaning

as in the 1986 Act.

74      

Making of ordinary administration orders

35

(1)   

This section applies if a person other than the Secretary of State makes an

ordinary administration application in relation to a company which is a

universal service provider.

(2)   

The court must dismiss the application if—

(a)   

a postal administration order is in force in relation to the company, or

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(b)   

a postal administration order has been made in relation to the company

but is not yet in force.

 
 

Postal Services Bill
Part 4 — Special administration regime

45

 

(3)   

If subsection (2) does not apply, the court, on hearing the application, must not

exercise its powers under paragraph 13 of Schedule B1 to the 1986 Act (other

than its power of adjournment) unless—

(a)   

notice of the application has been served on the Secretary of State and

OFCOM,

5

(b)   

a period of at least 14 days has elapsed since the service of the last of

those notices to be served, and

(c)   

there is no application for a postal administration order which is

outstanding.

(4)   

Paragraph 44 of Schedule B1 to the 1986 Act (interim moratorium) does not

10

prevent, or require the permission of the court for, the making of an application

for a postal administration order.

(5)   

On the making of a postal administration order in relation to a company, the

court must dismiss any ordinary administration application made in relation

to the company which is outstanding.

15

(6)   

In this section “ordinary administration application” means an application in

accordance with paragraph 12 of Schedule B1 to the 1986 Act.

75      

Administrator appointments by creditors etc

(1)   

Subsections (2) to (4) make provision about appointments under paragraph 14

or 22 of Schedule B1 to the 1986 Act (powers to appoint administrators) in

20

relation to a company which is a universal service provider.

(2)   

If in any case—

(a)   

a postal administration order is in force in relation to the company,

(b)   

a postal administration order has been made in relation to the company

but is not yet in force, or

25

(c)   

an application for a postal administration order in relation to the

company is outstanding,

   

a person may not take any step to make an appointment.

(3)   

In any other case, an appointment takes effect only if each of the following

conditions are met.

30

(4)   

The conditions are—

(a)   

that a copy of every document in relation to the appointment that is

filed or lodged with the court in accordance with paragraph 18 or 29 of

Schedule B1 to the 1986 Act has been served on the Secretary of State

and OFCOM,

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(b)   

that a period of 14 days has elapsed since the service of the last of those

copies to be served,

(c)   

that there is no outstanding application to the court for a postal

administration order in relation to the company, and

(d)   

that the making of an application for a postal administration order in

40

relation to the company has not resulted in the making of a postal

administration order which is in force or is still to come into force.

(5)   

Paragraph 44 of Schedule B1 to the 1986 Act (interim moratorium) does not

prevent, or require the permission of the court for, the making of an application

for a postal administration order at any time before the appointment takes

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effect.

 
 

Postal Services Bill
Part 4 — Special administration regime

46

 

76      

Enforcement of security

(1)   

A person may not take any step to enforce a security over property of a

company which is a universal service provider unless—

(a)   

notice of the intention to do so has been served on the Secretary of State

and OFCOM, and

5

(b)   

a period of at least 14 days has elapsed since the service of the last of

those notices to be served.

(2)   

In the case of a foreign company which is a universal service provider, the

reference to the property of the company is to its property in the United

Kingdom.

10

Financial support for companies in administration

77      

Grants and loans

(1)   

This section applies if a postal administration order has been made in relation

to a company.

(2)   

The Secretary of State may, with the consent of the Treasury, make grants or loans to

15

the company of such amounts as it appears to the Secretary of State appropriate for

achieving the objective of the postal administration.

(3)   

The grants or loans may be made in whatever manner, and on whatever terms,

the Secretary of State considers appropriate.

(4)   

The terms on which the grants may be made include, in particular, terms

20

requiring the whole or a part of the grants to be repaid to the Secretary of State

if there is a contravention of the other terms on which they are made.

(5)   

The terms on which loans may be made include, in particular, terms

requiring—

(a)   

the loans to be repaid at such times and by such methods as the

25

Secretary of State may, with the consent of the Treasury, from time to

time direct, and

(b)   

interest to be paid on the loans at such rates and at such times as the

Secretary of State may, with the consent of the Treasury, from time to

time direct.

30

(6)   

The Secretary of State must pay sums received as a result of this section into the

Consolidated Fund.

78      

Indemnities

(1)   

This section applies if a postal administration order has been made in relation

to a company.

35

(2)   

The Secretary of State may, with the consent of the Treasury, agree to indemnify

persons in respect of one or both of the following

(a)   

liabilities incurred in connection with the exercise and performance of powers

and duties by the postal administrator, and

(b)   

loss or damage sustained in that connection.

40

(3)   

The agreement may be made in whatever manner, and on whatever terms, the

Secretary of State considers appropriate.

 
 

Postal Services Bill
Part 4 — Special administration regime

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(4)   

If sums are paid by the Secretary of State in consequence of an indemnity

agreed to under this section, the company must pay the Secretary of State—

(a)   

such amounts in or towards the repayment to the Secretary of State of

those sums as the Secretary of State may, with the consent of the

Treasury, direct, and

5

(b)   

interest on amounts outstanding under this subsection at such rates as

the Secretary of State may, with the consent of the Treasury, direct.

(5)   

The payments must be made by the company at such times and in such manner

as the Secretary of State may, with the consent of the Treasury, determine.

(6)   

Subsection (4) does not apply in the case of a sum paid by the Secretary of State

10

for indemnifying a person in respect of a liability to the company.

(7)   

The power of the Secretary of State to agree to indemnify persons—

(a)   

is confined to a power to agree to indemnify persons in respect of

liabilities, loss and damage incurred or sustained by them as relevant

persons, but

15

(b)   

includes power to agree to indemnify persons (whether or not they are

identified or identifiable at the time of the agreement) who

subsequently become relevant persons.

(8)   

The following are relevant persons for the purposes of this section—

(a)   

the postal administrator,

20

(b)   

an employee of the postal administrator,

(c)   

a partner or employee of a firm of which the postal administrator is a

partner,

(d)   

a partner or employee of a firm of which the postal administrator is an

employee,

25

(e)   

a partner of a firm of which the postal administrator was an employee

or partner at a time when the order was in force,

(f)   

a body corporate which is the employer of the postal administrator,

(g)   

an officer, employee or member of such a body corporate, and

(h)   

a Scottish firm which is the employer of the postal administrator or of

30

which the postal administrator is a partner.

(9)   

For the purposes of subsection (8)—

(a)   

references to the postal administrator are to be read, where two or more

persons are appointed as the postal administrator, as references to any

one or more of them, and

35

(b)   

references to a firm of which a person was a partner or employee at a

particular time include a firm which holds itself out to be the successor

of a firm of which the person was a partner or employee at that time.

(10)   

The Secretary of State must pay sums received as a result of subsection (4) into the

Consolidated Fund.

40

79      

Guarantees where postal administration order is made

(1)   

This section applies if a postal administration order has been made in relation

to a company.

(2)   

The Secretary of State may, with the consent of the Treasury, guarantee

(a)   

the repayment of any sum borrowed by the company while that order is in

45

force,

 
 

Postal Services Bill
Part 4 — Special administration regime

48

 

(b)   

the payment of interest on any sum borrowed by the company while that order

is in force, and

(c)   

the discharge of any other financial obligation of the company in connection

with the borrowing of any sum while that order is in force.

(3)   

The Secretary of State may give the guarantees in such manner, and on such

5

terms, as the Secretary of State thinks fit.

(4)   

As soon as practicable after giving a guarantee under this section, the Secretary

of State must lay a statement of the guarantee before Parliament.

(5)   

If sums are paid out by the Secretary of State under a guarantee given under

this section, the company must pay the Secretary of State—

10

(a)   

such amounts in or towards the repayment to the Secretary of State of

those sums as the Secretary of State may, with the consent of the

Treasury, direct, and

(b)   

interest on amounts outstanding under this subsection at such rates as

the Secretary of State may, with the consent of the Treasury, direct.

15

(6)   

The payments must be made by the company at such times, and in such

manner, as the Secretary of State may, with the consent of the Treasury, from

time to time direct.

(7)   

If a sum has been paid out under a guarantee given under this section, the

Secretary of State must lay a statement relating to that sum before Parliament—

20

(a)   

as soon as practicable after the end of the financial year in which the

sum is paid out, and

(b)   

as soon as practicable after the end of each subsequent financial year in

relation to which the repayment condition has not been met.

(8)   

The repayment condition is met in relation to a financial year if—

25

(a)   

the whole of the sum has been repaid to the Secretary of State before the

beginning of the year, and

(b)   

the company was not at any time during the year liable to pay interest

on amounts that became due in respect of the sum.

(9)   

The Secretary of State must pay sums received as a result of subsection (5) into the

30

Consolidated Fund.

(10)   

In this section “financial year” means a period of 12 months ending with 31

March.

Modifications of regulatory conditions etc

80      

Regulatory powers exercisable during postal administration

35

(1)   

This section applies if a postal administration order has been made.

(2)   

The Secretary of State may by order modify the universal postal service order

made by OFCOM under section 29 if the Secretary of State considers it

appropriate to do so for, or in connection with, achieving the objective of the

postal administration.

40

(3)   

Before modifying that order, the Secretary of State must consult—

(a)   

OFCOM, and

(b)   

such other persons as the Secretary of State considers appropriate.

 
 

Postal Services Bill
Part 4 — Special administration regime

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(4)   

If the Secretary of State modifies that order, it is for the Secretary of State

(rather than OFCOM) to notify the European Commission of the modification.

(5)   

The Secretary of State may by order amend section 30 if the Secretary of State

considers it appropriate to do so for, or in connection with, achieving the

objective of the postal administration.

5

(6)   

An order under subsection (5)—

(a)   

is subject to approval after being made, and

(b)   

may include such amendments of Part 3 as the Secretary of State

considers necessary or expedient in consequence of any provision

made by the order.

10

(7)   

The Secretary of State may modify or revoke any regulatory condition if the

Secretary of State considers it appropriate to do so for, or in connection with,

achieving the objective of the postal administration.

(8)   

The Secretary of State’s power to make modifications includes power to make

incidental, supplementary, consequential, transitional or transitory

15

modifications.

(9)   

Before modifying or revoking a regulatory condition, the Secretary of State

must consult—

(a)   

OFCOM,

(b)   

the person whose condition is being modified or revoked, and

20

(c)   

such other persons as the Secretary of State considers appropriate.

(10)   

The Secretary of State must publish every modification or revocation of a

regulatory condition made under this section.

(11)   

The publication must be in such manner as the Secretary of State considers

appropriate.

25

(12)   

The provisions of Part 3 (including section 28) other than

(a)   

sections 55 to 58 (appeals), and

(b)   

paragraph 3 of Schedule 6 (procedure for modifying or revoking

regulatory conditions),

   

apply in relation to the modification or revocation by the Secretary of State of

30

regulatory conditions as they apply in relation to the modification or

revocation by OFCOM of regulatory conditions.

(13)   

Any duty to consult under this section may be met by consultation before the

making of the postal administration order.

81      

Regulatory conditions to secure funding of postal administration order

35

(1)   

The modifications that may be made under section 80 include, in particular,

modifications of any price control provision contained in a regulatory

condition for the purpose of raising such amounts as may be determined by the

Secretary of State.

(2)   

The modified condition may require the person on whom it is imposed to pay

40

those amounts to such persons as may be so determined for the purpose of—

(a)   

their applying those amounts in making good any shortfall in the

property available for meeting the expenses of the postal

administration, or

(b)   

enabling those persons to secure that those amounts are so applied.

45

 
 

Postal Services Bill
Part 4 — Special administration regime

50

 

(3)   

The modified condition may require the person on whom it is imposed to

apply amounts paid to it as result of this section in making good any shortfall

in the property available for meeting the expenses of the postal administration.

(4)   

For the purposes of this section “price control provision” means—

(a)   

provision as to the tariffs that are to be used as mentioned in section

5

35(4) (designated USP condition: tariffs), or

(b)   

provision as to prices that may be charged for the giving of access

under an access condition (within the meaning of Part 3).

(5)   

For the purposes of this section—

(a)   

there is a shortfall in the property available for meeting the costs of a

10

postal administration if the property available (apart from this section)

for meeting relevant debts is insufficient for meeting them, and

(b)   

amounts are applied in making good that shortfall if they are paid in or

towards discharging so much of a relevant debt as cannot be met out of

the property otherwise available for meeting relevant debts.

15

(6)   

In this section “relevant debt”, in relation to a case in which a company is or has

been subject to a postal administration order, means an obligation—

(a)   

to make payments in respect of the expenses or remuneration of any

person as the postal administrator of the company,

(b)   

to make a payment in discharge of a debt or other liability of the

20

company arising out of a contract entered into at a time when the order

was in force by the person who at that time was the postal

administrator of the company,

(c)   

to repay the whole or a part of a grant made to the company under

section 77,

25

(d)   

to repay a loan made to the company under section 77 or to pay interest

on such a loan,

(e)   

to make a payment under section 78(4), or

(f)   

to make a payment under section 79(5).

Supplementary provisions

30

82      

Modification of Part 4 under Enterprise Act 2002

The power to modify or apply enactments conferred on the Secretary of State

by—

(a)   

sections 248 and 277 of the Enterprise Act 2002 (amendments

consequential on that Act), and

35

(b)   

section 254 of that Act (power to apply insolvency law to foreign

companies),

includes power to make such consequential modifications of this Part as the

Secretary of State considers appropriate in connection with any other provision

made under any of those sections.

40

83      

Interpretation of Part 4

(1)   

In this Part—

“the 1986 Act” means the Insolvency Act 1986,

“business”, “member”, “property” and “security” have the same meaning

as in the 1986 Act,

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