The Pilotage Act 1987 (Pilotage Commission: Transfer of Property, Rights and Liabilities) Order 1990

Winding up of the Commission and disposal of property, rights and liabilities

2.—(1) The Commission shall be wound up by the passing of a unanimous resolution of the Commissioners present at a meeting of the Commissioners duly held in accordance with the Commission’s regulations on or prior to 31 August 1989. Such resolution shall appoint William Morys Roberts and Nigel James Hamilton, both of Ernst & Young, Becket House, 1 Lambeth Palace Road, London SE1 7EV, chartered accountants and authorised insolvency practitioners, or such other person or persons who are authorised insolvency practitioners as the Commissioners may decide, as joint liquidators for the purpose of winding-up the Commission’s affairs and distributing its assets. The Liquidators shall have the power to act singly.

(2) The winding up of the Commission is deemed to commence at the time of the passing of the resolution passed pursuant to paragraph (1) of this Article from which time the Commission shall cease to carry on its business except so far as may be required for its beneficial winding up and the powers of the Commissioners shall cease save for the powers set out in paragraph (3) of this Article and save as the Liquidators sanction their continuance.

(3) The following powers of the Commissioners shall continue after the Liquidation Date until such time as the Liquidators are released from their office pursuant to paragraph (15) of this Article:

(a) to approve the final accounts and final report of the Commission;

(b) to receive reports from the Liquidators and statements of their receipts and payments;

(c) to hold meetings with the Liquidators at their request;

(d) to receive reports from the Liquidators on such matters as appear to the Liquidators to be, or as the Commissioners have indicated to the Liquidators as being, of concern to them in relation to the liquidation;

(e) to approve the remuneration of the Liquidators;

(f) to sanction exercise by the Liquidators of any of the powers set out in Part I of Schedule 4 to the Insolvency Act;

(g) to give such directions to the Liquidators as regards the liquidation as the Commissioners may require or the Liquidators may request;

(h) to certify the proportion that the payments made by each Competent Harbour Authority to the Commission in respect of levies raised by the Commission for the period from 1 October 1988 to 30 June 1989 bears to the total of such payments made by all the Competent Harbour Authorities in respect of such levies for such period.

(4) At any meeting of the Commission held in connection with the powers set out in paragraph (3) of this Article, each Commissioner (whether present himself, or by his representative) has one vote; and a resolution is passed when a majority of the Commissioners present or represented have voted in favour of it. Every resolution passed shall be recorded in writing, either separately or as part of the minutes of the meeting. The record shall be signed by the chairman and kept with the records of the liquidation.

(5) In accordance with this paragraph, the Liquidators may seek to obtain the agreement of the Commissioners to a resolution pursuant to paragraph (3) of this Article by sending to every Commissioner (or his representative designated for the purpose) a copy of the proposed resolution. Where the Liquidators make use of the procedure allowed by this paragraph, they shall send out to the Commissioners or their representatives (as the case may be) a statement incorporating the resolution to which their agreement is sought, each resolution (if more than one) being set out in a separate document. The resolution is deemed to have been passed by the Commissioners if and when the Liquidators are notified in writing by a majority of the Commissioners that they concur with it. A copy of every resolution passed under the paragraph and a note that the Commissioners' concurrence was obtained, shall be kept with the records of the liquidation.

(6) Within the 5 weeks immediately preceding the Liquidation Date, or on the Liquidation Date but before the passing of the resolution, a majority of the Commissioners shall make a statutory declaration to the effect that they have made a full inquiry into the Commissioner’s affairs and that, having done so, they have formed the opinion that the Commission will be able to pay its debts in full, together with interest (at the rate set out in Rule 4.93(6) of the Insolvency Rules) within such period, not exceeding 12 months from the commencement of the winding up, as may be specified in the declaration. Such statutory declaration shall embody a statement of the Commission’s assets and liabilities as at the latest practicable date before the making of the declaration and shall be delivered to the Secretary of State for Transport before the expiration of 15 days immediately following the Liquidation Date.

(7) The Liquidators may with the sanction of the majority of the Commissioners exercise any of the powers set out in Part I of Schedule 4 to the Insolvency Act and without sanction exercise any of the powers set out in Part II or Part III of Schedule 4 to the Insolvency Act. The Liquidators shall also have the power to

(a) summon meetings of the Commissioners for the purpose of obtaining their sanction or for any other purpose they may think fit;

(b) open one or more bank accounts; and

(c) invest monies coming into their hands on behalf of the Commission either in money market deposits with the bank or in treasury bills.

(8) In the event that any issue may arise in connection with the winding up of the Commission that, in the event that the issue were to arise in connection with the winding up of a company would fall to be resolved in accordance with the provisions of the Insolvency Act and Insolvency Rules, the Liquidators shall be entitled to apply the provisions of the Insolvency Act and Insolvency Rules applicable to a members' voluntary winding up of a company so as to resolve the issue.

(9) The Liquidators shall before the expiration of 15 days immediately following the Liquidation Date publish in the London Gazette, the Edinburgh Gazette and the Times newspaper and deliver to the Secretary of State for Transport a notice that the Commission passed on the Liquidation Date a resolution for its winding up and notice of their appointment and shall also publish in the London Gazette, the Edinburgh Gazette and the Times newspaper notice that any claims against the Commission must be submitted in writing to the Liquidators within such period as is specified in the notice, being no less than 28 days from the date of publication of the notice.

(10) A person claiming to be a creditor of the Commission and wishing to recover his debt in whole or in part must submit his claim in writing to the Liquidators. Forms of proof shall be sent out by the Liquidators to every creditor of the Commission who is known to them or is identified in the Commission’s statement of affairs before the expiration of 15 days immediately following the Liquidation Date. The creditor’s proof of debt shall include those matters set out in Rule 4.75 of the Insolvency Rules, and shall specify any documents by reference to which the debt can be substantiated. The Liquidators may call for details of any matter specified in said Rule 4.75 or for the production to them of such documentary or other evidence as they may require.

(11) All claims by creditors, other than those not provable under any enactment or rule of law whether on grounds of public policy or otherwise, are provable as debts against the Commission whether they are present or future, certain or contingent, ascertained or sounding only in damages. A proof may be rejected for dividend or admitted for dividend either for the whole amount claimed by the creditor, or for part of that amount. If the Liquidators reject a proof in whole or in part, they shall prepare a written statement of their reasons for doing so, and send it forthwith to the creditor. If a creditor is dissatisfied with the Liquidators' decision with respect to his proof (including any decision on the question of preference) he may apply to the court for the decision to be reversed or varied within 21 days of receiving such statement. In the event of such an application the court shall fix a venue for the application to be heard, notice of which shall be sent by the applicant to the creditor who lodged the proof in question (if it is not himself) and to the Liquidators. The Liquidators shall, on receipt of the notice, file in court the relevant proof, together with a copy of the statement. After the application has been heard and determined, the proof shall, unless it has been wholly disallowed, be returned by the court to the Liquidators.

(12) The provisions of Rules 4.86 to 4.94 inclusive of the Insolvency Rules shall apply to the quantification of claims and the provisions of Rule 4.182A of the Insolvency Rules shall apply as to distributions in the winding up of the Commission.

(13) The Liquidators shall pay all the Commission’s preferential debts (within the meaning given by section 386 of the Insolvency Act) in priority to all other debts. Subject to prior payment of such debts, the Commission’s property shall be applied in satisfaction of the Commission’s liabilities pari passu and, subject to that application, be distributed to each Competent Harbour Authority in the same proportion that the payments made by each Competent Harbour Authority to the Commission in respect of levies raised by the Commission for the period from 1 October 1988 to 30 June 1989 bears to the total of such payments made by all the Competent Harbour Authorities in respect of such levies for such period. The Commission will upon request by the Liquidators provide a certificate as to such payments and the proportions thereof.

(14) The Liquidators shall prepare accounts of all receipts and payments and a report of their acts and dealings within 28 days after being requested to do so by a majority of the Commissioners or the Secretary of State for Transport. The Liquidators shall also prepare and submit a final account and report upon completion of the winding up which shall be submitted to the Secretary of State for Transport, each Commissioner and each Competent Harbour Authority.

(15) The Liquidators shall when submitting the final account and report of the winding up to the Secretary of State for Transport certify in writing to the Secretary of State that the assets of the Commission have been realised, there are no unsettled claims of which they are aware, the liabilities of the Commission have been paid and any surplus has been distributed in accordance with paragraph (13) of this Article. The Liquidators shall automatically be released from their office 14 days after the date of such certificate.