Postal Services Bill

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Session 2010 - 11
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Postal Services Bill

Postal Services Bill
Schedule 10 — Conduct of postal administration
Part 1 — Modifications of Schedule B1 to 1986 Act
103

Schedule 10
Section 71

Conduct of postal administration
Part 1
Modifications of Schedule B1 to 1986 Act
Introductory
5
1
Paragraphs 1, 40 to 50, 54, 59 to 68, 70 to 75, 79, 83 to 91, 98 to 107, 109 to 111
and 112 to 116 of Schedule B1 to the 1986 Act are to have effect in relation to
postal administration orders as they have effect in relation to administration
orders under that Schedule, but with the modifications set out in this Part of
this Schedule.
10
General modifications of the applicable provisions
2
Those paragraphs are to have effect as if—
(a)
for “administration application”, in each place, there were
substituted “postal administration application”,
(b)
for “administration order”, in each place, there were substituted
15
“postal administration order”,
(c)
for “administrator”, in each place, there were substituted “postal
administrator”,
(d)
for “enters administration”, in each place, there were substituted
“enters postal administration”,
20
(e)
for “in administration”, in each place, there were substituted “in
postal administration”, and
(f)
for “purpose of administration”, in each place (other than in
paragraph 111(1)), there were substituted “objective of the postal
administration”.
25
Specific modifications
3
Paragraph 1 (administration) is to have effect as if—
(a)
for sub-paragraph (1) there were substituted—
    “(1)
In this Schedule “postal administrator”, in relation to a
company, means a person appointed by the court for the
30
purposes of a postal administration order to manage its
affairs, business and property.”, and
(b)
in sub-paragraph (2), for “Act” there were substituted “Schedule”.
4
Paragraph 40 (dismissal of pending winding-up petition) is to have effect as
if sub-paragraphs (1)(b), (2) and (3) were omitted.
35
5
Paragraph 42 (moratorium on insolvency proceedings) is to have effect as if
sub-paragraphs (4) and (5) were omitted.
6
Paragraph 44 (interim moratorium) is to have effect as if sub-paragraphs (2)
to (4), (6) and (7)(a) to (c) were omitted.

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Schedule 10 — Conduct of postal administration
Part 1 — Modifications of Schedule B1 to 1986 Act
104

7
Paragraph 46(6) (date for notifying administrator’s appointment) is to have
effect as if for paragraphs (a) to (c) there were substituted “the date on which
the postal administration order comes into force”.
8
Paragraph 49 (administrator’s proposals) is to have effect as if—
(a)
in sub-paragraph (2)(b) for “objective mentioned in paragraph
5
3(1)(a) or (b) cannot be achieved” there were substituted “objective of
the postal administration should be achieved by means other than
just a rescue of the company as a going concern”, and
(b)
in sub-paragraph (4), after paragraph (a) there were inserted—
“(aa)
to the Secretary of State and OFCOM,”.
10
9
Paragraph 54 is to have effect as if the following were substituted for it—
“54   (1)
The postal administrator of a company may on one or more
occasions revise the proposals included in the statement made
under paragraph 49 in relation to the company.
      (2)
If the postal administrator thinks that a revision is substantial, the
15
postal administrator must send a copy of the revised proposals—
(a)
to the registrar of companies,
(b)
to the Secretary of State and OFCOM,
(c)
to every creditor of the company of whose claim and
address the postal administrator is aware, and
20
(d)
to every member of the company of whose address the
postal administrator is aware.
      (3)
A copy sent in accordance with sub-paragraph (2) must be sent
within the prescribed period.
      (4)
The postal administrator is to be taken to have complied with sub-
25
paragraph (2)(d) if the postal administrator 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 to a specified address.
      (5)
The postal administrator who fails without reasonable excuse to
30
comply with this paragraph commits an offence.”
10
Paragraph 60 (powers of an administrator) is to have effect as if the existing
text were to become sub-paragraph (1) and as if after that sub-paragraph
there were inserted—
    “(2)
The postal administrator of a company has the power to act on
35
behalf of the company for the purposes of any enactment 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
Postal Services Act 2011 (see section 88).”
11
Paragraph 68 (management duties of an administrator) is to have effect as
40
if—
(a)
in sub-paragraph (1), for paragraphs (a) to (c) there were
substituted—

“the proposals as—
(a)
set out in the statement made under paragraph 49
45
in relation to the company, and

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Schedule 10 — Conduct of postal administration
Part 1 — Modifications of Schedule B1 to 1986 Act
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(b)
from time to time revised under paragraph 54,

for achieving the objective of the postal administration.”,
and
(b)
in sub-paragraph (3), for paragraphs (a) to (d) there were substituted
“the directions are consistent with the achievement of the objective
5
of the postal administration”.
12
Paragraph 71(3)(b) (charged property: non-floating charge) is to have effect
as if for “market” there were substituted “the appropriate”.
13
Paragraph 72(3)(b) (hire-purchase property) is to have effect as if for
“market” there were substituted “the appropriate”.
10
14
Paragraph 73(3) (protection for secured or preferential creditor) is to have
effect as if for “or modified” there were substituted “under paragraph 54”.
15
Paragraph 74 (challenge to administrator’s conduct) is to have effect as if—
(a)
for sub-paragraph (2) there were substituted—
    “(2)
If a company is in postal administration, a person
15
mentioned in sub-paragraph (2A) may apply to the court
claiming that the postal administrator is acting in a manner
preventing the achievement of the objective of the postal
administration as quickly and efficiently as is reasonably
practicable.
20
     (2A)
The persons who may apply to the court are—
(a)
the Secretary of State,
(b)
with the consent of the Secretary of State, OFCOM,
(c)
a creditor or member of the company.”,
(b)
in sub-paragraph (6)—
25
(i)
at the end of paragraph (b) there were inserted “or”, and
(ii)
paragraph (c) (and the “or” before it) were omitted, and
(c)
after that sub-paragraph there were inserted—
    “(7)
In the case of a claim made otherwise than by the Secretary
of State or OFCOM, the court may grant a remedy or relief
30
or make an order under this paragraph only if it has given
the Secretary of State or OFCOM 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
35
on an application under this paragraph only if it is
satisfied, in relation to the matters that are the subject of
the application, that the postal administrator—
(a)
is acting,
(b)
has acted, or
40
(c)
is proposing to act,

in a way that is inconsistent with the achievement of the
objective of the postal administration as quickly and as
efficiently as is reasonably practicable.
      (9)
Before the making of an order of the kind mentioned in
45
sub-paragraph (4)(d)—

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Schedule 10 — Conduct of postal administration
Part 1 — Modifications of Schedule B1 to 1986 Act
106

(a)
the court must notify the postal administrator of
the proposed order and of a period during which
the postal administrator is to have the opportunity
of taking steps falling within sub-paragraphs (10)
to (12), and
5
(b)
the period notified must have expired without the
taking 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
10
referred to in sub-paragraph (9) are—
(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
15
(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
20
harmed.
     (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 postal
25
administration as quickly and as efficiently as is
reasonably practicable,
(b)
remedying the consequences of the postal
administrator having acted in such a manner, and
(c)
steps for ensuring that there is no repetition of
30
conduct preventing the achievement of the
objective of the postal administration as quickly
and as efficiently as is reasonably practicable.”
16
Paragraph 75(2) (misfeasance) is to have effect as if after paragraph (b) there
were inserted—
35
“(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 postal
administrators,”.
17
Paragraph 79 (end of administration) is to have effect as if—
40
(a)
for sub-paragraphs (1) and (2) there were substituted—
    “(1)
On an application made by a person mentioned in sub-
paragraph (2), the court may provide for the appointment
of a postal administrator of a company to cease to have
effect from a specified time.
45
      (2)
An application may be made to the court under this
paragraph—
(a)
by the Secretary of State,

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Schedule 10 — Conduct of postal administration
Part 1 — Modifications of Schedule B1 to 1986 Act
107

(b)
with the consent of the Secretary of State, by
OFCOM, or
(c)
with the consent of the Secretary of State, by the
postal administrator.”, and
(b)
sub-paragraph (3) were omitted.
5
18
Paragraph 83(3) (notice to registrar when moving to voluntary liquidation)
is to have effect as if after “may” there were inserted “, with the consent of
the Secretary of State or of OFCOM,”.
19    (1)
Paragraph 84 (notice to registrar when moving to dissolution) is to have
effect as if—
10
(a)
in sub-paragraph (1), for “to the registrar of companies” there were
substituted—
“(a)
to the Secretary of State and OFCOM, and
(b)
if directed to do so by either the Secretary of State
or OFCOM, to the registrar of companies.”,
15
(b)
sub-paragraph (2) were omitted, and
(c)
in sub-paragraphs (3) to (6), for “(1)”, in each place, there were
substituted “(1)(b)”.
20
Paragraph 87(2) (resignation of administrator) is to have effect as if for
paragraphs (a) to (d) there were substituted “by notice in writing to the
20
court”.
21
Paragraph 89(2) (administrator ceasing to be qualified) is to have effect as if
for paragraphs (a) to (d) there were substituted “to the court”.
22
Paragraph 90 (filling vacancy in office of administrator) is to have effect as if
for “Paragraphs 91 to 95 apply” there were substituted “Paragraph 91
25
applies”.
23
Paragraph 91 (vacancies in court appointments) is to have effect as if—
(a)
for sub-paragraph (1) there were substituted—
    “(1)
The court may replace the postal administrator on an
application made—
30
(a)
by the Secretary of State,
(b)
with the consent of the Secretary of State, by
OFCOM, or
(c)
where more than one person was appointed to act
jointly as the postal administrator, by any of those
35
persons who remains in office.”, and
(b)
sub-paragraph (2) were omitted.
24
Paragraph 98 (discharge from liability on vacation of office) is to have effect
as if sub-paragraphs (2)(b) and (3) were omitted.
25
Paragraph 99 (charges and liabilities upon vacation of office by
40
administrator) is to have effect as if—
(a)
in sub-paragraph (4), for the words from the beginning to
“cessation”, in the first place, there were substituted “A sum falling
within sub-paragraph (4A)”,
(b)
after that sub-paragraph there were inserted—
45
   “(4A)
A sum falls within this sub-paragraph if it is—

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Schedule 10 — Conduct of postal administration
Part 1 — Modifications of Schedule B1 to 1986 Act
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(a)
a sum payable in respect of a debt or other liability
arising out of a contract that was entered into
before cessation by the former postal administrator
or a predecessor,
(b)
a sum that must be repaid by the company in
5
respect of a grant that was made before cessation
under section 77 of the Postal Services Act 2011 as
is mentioned in subsection (4) of that section,
(c)
a sum that must be repaid by the company in
respect of a loan made before cessation under that
10
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 78 of that Act in respect of an
agreement to indemnify made before cessation, or
15
(e)
a sum payable by the company under subsection
(5) of section 79 of that Act in respect of a guarantee
given before cessation.”, and
(c)
in sub-paragraph (5), for “(4)” there were substituted “(4A)(a)”.
26
Paragraph 100 (joint and concurrent administrators) is to have effect as if
20
sub-paragraph (2) were omitted.
27
Paragraph 101(3) (joint administrators) is to have effect as if after “87 to”
there were inserted “91, 98 and”.
28
Paragraph 103 (appointment of additional administrators) is to have effect
as if—
25
(a)
in sub-paragraph (2) the words from the beginning to “order” were
omitted and for paragraph (a) there were substituted—
“(a)
the Secretary of State,
(aa)
OFCOM, or”,
(b)
after that sub-paragraph there were inserted—
30
   “(2A)
The consent of the Secretary of State is required for an
application by OFCOM for the purposes of sub-paragraph
(2).”, and
(c)
sub-paragraphs (3) to (5) were omitted
29
Paragraph 106(2) (penalties) is to have effect as if paragraphs (a), (b), (f), (g),
35
(i) and (l) to (n) were omitted.
30
Paragraph 109 (references to extended periods) is to have effect as if “or 108”
were omitted.
31
Paragraph 111 (interpretation) is to have effect as if—
(a)
in sub-paragraph (1), the definitions of “correspondence”, “holder of
40
a qualifying floating charge”, “market value”, “the purpose of
administration” and “unable to pay its debts” were omitted,
(b)
in that sub-paragraph, after the definition of “administrator” (as
modified as a result of paragraph 2 above) there were inserted—
““appropriate value” means the best price which would
45
be reasonably available on a sale which is consistent
with the achievement of the objective of the postal
administration,”,

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Schedule 10 — Conduct of postal administration
Part 2 — Further modifications of Schedule B1 to 1986 Act: foreign companies
109

(c)
in that sub-paragraph, before the definition of “creditors’ meeting”
there were inserted—
““company” and “court” have the same meaning as in
Part 4 of the Postal Services Act 2011,”,
(d)
in that sub-paragraph, after the definition of “hire purchase
5
agreement” there were inserted—
““objective”, in relation to a postal administration, is to
be read in accordance with section 67 of the Postal
Services Act 2011,
“OFCOM” means the Office of Communications,
10
“postal administration application” means an
application to the court for a postal administration
order under Part 4 of the Postal Services Act 2011,
“postal administration order” has the same meaning as
in Part 4 of the Postal Services Act 2011,
15
“prescribed” means prescribed by postal administration
rules within the meaning of Part 4 of the Postal
Services Act 2011.”,
(e)
sub-paragraphs (1A) and (1B) were omitted, and
(f)
after sub-paragraph (3) there were inserted—
20
    “(4)
For the purposes of this Schedule a reference to a postal
administration order includes a reference to an
appointment under paragraph 91 or 103.”
Part 2
Further modifications of Schedule B1 to 1986 Act: foreign companies
25
Introductory
32    (1)
This Part of this Schedule applies in the case of a postal administration order
applying to a foreign company.
      (2)
The provisions of Schedule B1 to the 1986 Act mentioned in paragraph 1
above (as modified by Part 1 of this Schedule) have effect in relation to the
30
company with the further modifications set out in this Part of this Schedule.
      (3)
The Secretary of State may by order amend this Part of this Schedule so as to
add more modifications.
      (4)
An order under this paragraph is subject to negative resolution procedure.
33
In paragraphs 34 to 39—
35
(a)
the provisions of Schedule B1 to the 1986 Act that are mentioned in
paragraph 1 above 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 1 of this
Schedule.
40
Modifications
34
In the case of a foreign company—
(a)
paragraphs 42(2), 83 and 84 of Schedule B1 to the 1986 Act do not
apply,