C17C10C11C12C28C13C14C15C26C25C16C16C29C30Part I Company Voluntary Arrangements

Annotations:
Modifications etc. (not altering text)
C17

Pt. 1 applied (with modifications) (1.12.1994) by The Insolvent Partnerships Order 1994 (S.I. 1994/2421), arts. 4(1), 5(1), Sch. 1 (as amended (1.1.2003) by S.I. 2002/2708, arts. 4-6 (with transitional provisions in art. 11); (1.7.2005) by S.I. 2005/1516, art. 6; (1.4.2013) by S.I. 2013/472, Sch. 2 para. 11(a); (1.1.2015) by S.I. 2014/3486, arts. 1(2), 12 (with art. 3); (6.4.2017) by S.I. 2017/540, reg. 1, Sch. 2 para. 4 (with reg. 4); (19.12.2018) by S.I. 2018/1244, arts. 1(2), 18(2) (with art. 3)); and (28.12.2020) (temp.) by S.I. 2020/1350, regs. 1(4), 121(2))

C10

Pt. 1 (ss. 1-7), Pt. 2 (ss. 8-27) modified by Company Directors Disqualification Act 1986 (c. 46, SIF 27), ss. 21(2), 25

C11

Pts. 1-7 (ss. 1-251) applied (with modifications) by S.I. 1989/1276, arts. 2, 3

Pt. 1 (ss. 1-7) applied with modifications by S.I. 1986/2142, arts. 1(2), 11, 13(3), 15

Pt. 1 (ss. 1-7) applied (with modifications) (1.12.1997) by 1986 c. 53, Sch. 15A (as inserted by 1997 c. 32, s. 39(2), Sch. 6 para. 1(2)(a); S.I. 1997/2668, art. 2, Sch. Pt. 1(i)) (as amended (13.3.2018) by The Small Business, Enterprise and Employment Act 2015 (Consequential Amendments, Savings and Transitional Provisions) Regulations 2018 (S.I. 2018/208), regs. 1(3), 2(3))

C12

Pt. 1: power to apply or incorporate conferred (6.4.2001) by 2000 c. 12, s. 14; S.I. 2000/3316, art. 2

Pt. 1: power to apply (with modifications) conferred (15.9.2003) by 2002 c. 40, ss. 255(2)(a), 279 (with s. 249(6)); S.I. 2003/2093, art. 2(1), Sch. 1 (subject to arts. 3-8 (as amended by S.I. 2003/2332, art. 2))

Pt. 1: power to apply (with modifications) conferred (20.11.2003 for specified purposes and 1.4.2004 otherwise) by Health and Social Care (Community Health and Standards) Act 2003 (c. 43), ss. 24(2), 26, 199; S.I. 2004/759, art. 2

Pt. 1: power to apply (with modifications) conferred (E.W.) (1.3.2007) by National Health Service Act 2006 (c. 41), ss. 53(2), 55, 277

C28

Pts. 1-4, 6, 7 applied to limited liability partnerships (with modifications) (E.W.S.) (6.4.2001) by S.I. 2001/1090, reg. 5, Schs. 3, 4 (as amended (4.3.2004) by S.I. 2004/355, art. 10; (1.10.2005) by S.I. 2005/1989, reg. 3, Sch. 2 (with reg. 4); (8.12.2017) by S.I. 2017/1119, reg. 1(1), Sch. 1 Pts. 2, 3; (temp.) (retrospective to 27.4.2020) by Corporate Insolvency and Governance Act 2020 (c. 12), Sch. 10 paras. 8(1)(2), 14, Sch. 12 para. 6 (with ss. 2(2), 5(2); (26.6.2020) by S.I. 2020/643, reg. 1(1), Sch. 1 (with reg. 2); (26.6.2020) by Corporate Insolvency and Governance Act 2020 (c. 12), s. 49(1), Sch. 12 para. 6 (with ss. 2(2), 5(2), 14(4)); and (16.2.2021) by S.I. 2021/60, reg. 1(1), Sch. 1 (with reg. 3(2)))

C13

First Group of Parts (Pts. 1-7) applied (with modifications) (15.12.2006) by The Banks (Former Authorised Institutions) (Insolvency) Order 2006 (S.I. 2006/3107), art. 3, Sch. (as amended (1.4.2013) by S.I. 2013/472, art. 1(1), Sch. 2 para. 117; and (13.3.2018) by S.I. 2018/208, regs. 1(3), 11)

C14

Pt. 1 applied (with modifications) (17.2.2009 for certain purposes, otherwise 21.2.2009) by Banking Act 2009 (c. 1), s. 113(6)-(9) (with s. 247); S.I. 2009/296, arts. 2, 3, Sch.

C15

Pt. 1 applied (with modifications) (21.2.2009) by Banking Act 2009 (c. 1), ss. 103, 134, 263(1) (with s. 247); S.I. 2009/296, art. 3, Sch. para. 2

C26

Pts. 1-4 applied in part (with modifications) (E.W.) (2.1.2013) by The Charitable Incorporated Organisations (Insolvency and Dissolution) Regulations 2012 (S.I. 2012/3013), reg. 1, Sch. para. 1 (as amended (26.6.2020) by Corporate Insolvency and Governance Act 2020 (c. 12), s. 49(1), Sch. 3 para. 49(3) (with ss. 2(2), 5(2)); (7.7.2020) by S.I. 2020/710, regs. 1, 4 (with reg. 6) (which affecting legislation is revoked and this amendment reversed (13.8.2020) by S.I. 2020/856, regs. 1(2), 2); and (13.8.2020 immediately after the coming into force of S.I. 2020/856, reg. 2) by S.I. 2020/856, regs. 1(3), 5 (with reg. 7))

C25

Pt. 1 applied (with modifications) (6.4.2014) by The Co-operative and Community Benefit Societies and Credit Unions (Arrangements, Reconstructions and Administration) Order 2014 (S.I. 2014/229), art. 2(1), Sch. 1 (as renamed (1.8.2014) by S.I. 2014/1815, Sch. para 33; and as amended (1.8.2014) by S.I. 2014/1822, art. 5; (13.3.2018) by S.I. 2018/208, regs. 1(3), 15(3)(a); and (18.7.2020) by S.I. 2020/744, arts. 1, 11)

C16

Pt. 1 power to apply (with or without modifications) (1.8.2014) by Co-operative and Community Benefit Societies Act 2014 (c. 14), s. 118(1)(2), 154 (with Sch. 5)

C30

Pt. 1 applied (with modifications) (E.W.S) (8.7.2021) by The Payment and Electronic Money Institution Insolvency Regulations 2021 (S.I. 2021/716), regs. 2, 44 (with reg. 5) (as amended (4.1.2024) by S.I. 2023/1399, regs. 1(2), 4, 18)

Consideration and implementation of proposal

C1C18C27C314 Decisions of F51the company and its creditors.

F431

This section applies where, under section 3—

a

a meeting of the company is summoned to consider the proposed voluntary arrangement, and

b

the company's creditors are asked to decide whether to approve the proposed voluntary arrangement.

1A

The company and its creditors may approve the proposed voluntary arrangement with or without modifications.

2

The modifications may include one conferring the functions proposed to be conferred on the nominee on another person qualified to act as an insolvency practitioner F38... F1in relation to the voluntary arrangement.

But they shall not include any modification by virtue of which the proposal ceases to be a proposal such as is mentioned in section 1.

3

F44Neither the company nor its creditors may approve any proposal or modification which affects the right of a secured creditor of the company to enforce his security, except with the concurrence of the creditor concerned.

4

Subject as follows, F45neither the company nor its creditors may approve any proposal or modification under which—

a

any preferential debt of the company is to be paid otherwise than in priority to such of its debts as are not preferential debts, F32...

F33aa

any ordinary preferential debt of the company is to be paid otherwise than in priority to any secondary preferential debts that it may have,

b

a preferential creditor of the company is to be paid an amount in respect of F35an ordinary preferential debt that bears to that debt a smaller proportion than is borne to F36another ordinary preferential debt by the amount that is to be paid in respect of that other debt F34, F40...

c

a preferential creditor of the company is to be paid an amount in respect of a secondary preferential debt that bears to that debt a smaller proportion than is borne to another secondary preferential debt by the amount that is to be paid in respect of that other debt.F41or

d

in the case of a company which is a relevant financial institution (see section 387A), any non-preferential debt is to be paid otherwise than in accordance with the rules in section 176AZA(2) or (3).

However, F46... such a proposal or modification F47may be approved with the concurrence of the F42... creditor concerned.

F794A

Subject to subsection (4B), where the nominee’s report under section 2(2) is submitted to the court before the end of the period of 12 weeks beginning with the day after the end of any moratorium for the company under Part A1, neither the company nor its creditors may approve any proposal or modification under which the following are to be paid otherwise than in full—

a

moratorium debts (within the meaning given by section 174A);

b

priority pre-moratorium debts (within the meaning given by section 174A).

4B

Subsection (4A) does not prevent the approval of such a proposal or modification with the concurrence of the creditor concerned.

5

Subject as above, F48the meeting of the company and the qualifying decision procedure shall be conducted in accordance with the rules.

6

After the conclusion of F49the company meeting in accordance with the rules, the chairman of the meeting shall report the result of the meeting to the court, and, immediately after reporting to the court, shall give notice of the result of the meeting to such persons as may be prescribed.

F506A

After the company's creditors have decided whether to approve the proposed voluntary arrangement the person who sought the decision must—

a

report the creditors' decision to the court, and

b

immediately after reporting to the court, give notice of the creditors' decision to such persons as may be prescribed.

7

References in this section to preferential debts F37, ordinary preferential debts, secondary preferential debts and preferential creditors are to be read in accordance with section 386 in Part XII of this Act.

C18C31F24A Approval of arrangement.

1

This section applies to a decision, under section 4, with respect to the approval of a proposed voluntary arrangement.

C22

The decision has effect if, in accordance with the rules—

a

it has been taken by F52the meeting of the company summoned under section 3 and by the company's creditors pursuant to that section, or

b

(subject to any order made under subsection F82(6)) it has been taken by the F53company's creditors pursuant to that section.

3

If the decision taken by the F54company's creditors differs from that taken by the company meeting, a member of the company may apply to the court.

4

An application under subsection (3) shall not be made after the end of the period of 28 days beginning with—

a

the day on which the decision was taken by the F55company's creditors, or

b

where the decision of the company meeting was taken on a later day, that day.

5

Where a member of a regulated company, F80as defined by section A49(13), applies to the court under subsection (3), the F31appropriate regulator is entitled to be heard on the application.

F305A

The appropriate regulator” means—

a

where the regulated company is a PRA-regulated company F81as defined by section A49(13), the Financial Conduct Authority and the Prudential Regulation Authority, and

b

in any other case, the Financial Conduct Authority.

6

On an application under subsection (3), the court may—

a

order the decision of the company meeting to have effect instead of the decision of the F56company's creditors, or

b

make such other order as it thinks fit.

C3C4C18C20C22C24C315 Effect of approval.

F31

This section applies where a decision approving a voluntary arrangement has effect under section 4A.

2

The F4... voluntary arrangement—

a

takes effect as if made by the company at the F57time the creditors decided to approve the voluntary arrangement, and

F5b

binds every person who in accordance with the rules—

i

was entitled to vote F58in the qualifying decision procedure by which the creditors' decision to approve the voluntary arrangement was made, or

ii

would have been so entitled if he had had notice of it,

as if he were a party to the voluntary arrangement.

2A

If—

a

when the arrangement ceases to have effect any amount payable under the arrangement to a person bound by virtue of subsection (2)(b)(ii) has not been paid, and

b

the arrangement did not come to an end prematurely,

the company shall at that time become liable to pay to that person the amount payable under the arrangement.

3

Subject as follows, if the company is being wound up or F6is in administration, the court may do one or both of the following, namely—

a

by order stay or sist all proceedings in the winding up or F6provide for the appointment of the administrator to cease to have effect;

b

give such directions with respect to the conduct of the winding up or the administration as it thinks appropriate for facilitating the implementation of the F4... voluntary arrangement.

F833A

Where immediately before the voluntary arrangement took effect a moratorium for the company was in force under Part A1 and a petition for the winding up of the company, other than an excepted petition within the meaning of section A20, was presented before the beginning of the moratorium, the court must dismiss the petition.

4

The court shall not make an order under subsection (3)(a) F84or dismiss a petition under subsection (3A)

a

at any time before the end of the period of 28 days beginning with the first day on which each of the reports required by section 4(6) F59and (6A) has been made to the court, or

b

at any time when an application under the next section or an appeal in respect of such an application is pending, or at any time in the period within which such an appeal may be brought.

F75

Where the company is in energy administration, the court shall not make an order or give a direction under subsection (3) unless—

a

the court has given the Secretary of State or the Gas and Electricity Markets Authority 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 energy administration.

6

In subsection (5) “in energy administration” and “objective of the energy administration” are to be construed in accordance with Schedule B1 to this Act, as applied by Part 1 of Schedule 20 to the Energy Act 2004.

C5C6C18C21C23C316 Challenge of decisions.

1

Subject to this section, an application to the court may be made, by any of the persons specified below, on one or both of the following grounds, namely—

a

that a voluntary arrangement F8which has effect under section 4A unfairly prejudices the interests of a creditor, member or contributory of the company;

b

that there has been some material irregularity at or in relation to F60the meeting of the company, or in relation to the relevant qualifying decision procedure.

F611A

In this section—

a

the “relevant qualifying decision procedure” means the qualifying decision procedure in which the company's creditors decide whether to approve a voluntary arrangement;

b

references to a decision made in the relevant qualifying decision procedure include any other decision made in that qualifying decision procedure.

2

The persons who may apply under F9subsection (1) are—

a

a person entitled, in accordance with the rules, to vote at F62the meeting of the company or in the relevant qualifying decision procedure;

F10aa

a person who would have been entitled, in accordance with the rules, to vote F63in the relevant qualifying decision procedure if he had had notice of it;

b

the nominee or any person who has replaced him under section 2(4) or 4(2); and

c

if the company is being wound up or F11is in administration, the liquidator or administrator.

F122A

Subject to this section, where a voluntary arrangement in relation to a company in energy 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 Gas and Electricity Markets Authority,

on the ground that the voluntary arrangement is not consistent with the achievement of the objective of the energy administration.

3

An application under this section shall not be made

F13a

after the end of the period of 28 days beginning with the first day on which each of the reports required by section 4(6) F64and (6A) has been made to the court F14or

b

in the case of a person who was not given notice of the F65relevant qualifying decision procedure, after the end of the period of 28 days beginning with the day on which he became aware that F66the relevant qualifying decision procedure had taken place,

but (subject to that) an application made by a person within subsection (2)(aa) on the ground that the voluntary arrangement prejudices his interests may be made after the arrangement has ceased to have effect, unless it came to an end prematurely.

4

Where on such an application the court is satisfied as to either of the grounds mentioned in subsection (1) F15or, in the case of an application under subsection (2A), as to the ground mentioned in that subsection, it may do F67any of the following, namely—

a

revoke or suspend F16any decision approving the voluntary arrangement which has effect under section 4A or, in a case falling within subsection (1)(b), any F17decision taken by the meeting F68of the company, or in the relevant qualifying decision procedure, which has effect under that section;

b

give a direction to any person for the summoning of F69a further company meeting to consider any revised proposal the person who made the original proposal may make or, in the case falling within subsection (1)(b), F70and relating to the company meeting, a further company meeting to reconsider the original proposal;

F71c

direct any person—

i

to seek a decision from the company's creditors (using a qualifying decision procedure) as to whether they approve any revised proposal the person who made the original proposal may make, or

ii

in a case falling within subsection (1)(b) and relating to the relevant qualifying decision procedure, to seek a decision from the company's creditors (using a qualifying decision procedure) as to whether they approve the original proposal.

5

Where at any time after giving a direction under subsection (4)(b) F72or (c) in relation to a revised proposal the court is satisfied that the person who made the original proposal does not intend to submit a revised proposal, the court shall revoke the direction and revoke or suspend any F18decision approving the voluntary arrangement which has effect under section 4A.

6

In a case where the court, on an application under this section with respect to any meeting F73or relevant qualifying decision procedure

a

gives a direction under subsection (4)(b) F74or (c), or

b

revokes or suspends an approval under subsection (4)(a) or (5),

the court may give such supplemental directions as it thinks fit and, in particular, directions with respect to things done F19under the voluntary arrangement since it took effect.

7

Except in pursuance of the preceding provisions of this section,

F75a

F20a decision taken at a F76company meeting summoned under section 3 is not invalidated by any irregularity at or in relation to the meeting F77, and

b

a decision of the company's creditors made in the relevant qualifying decision procedure is not invalidated by any irregularity in relation to the relevant qualifying decision procedure.

F218

In this section “in energy administration” and “objective of the energy administration” are to be construed in accordance with Schedule B1 to this Act, as applied by Part 1 of Schedule 20 to the Energy Act 2004.

C31F226A False representations, etc.

1

If, for the purpose of obtaining the approval of the members or creditors of a company to a proposal for a voluntary arrangement, a person who is an officer of the company—

a

makes any false representation, or

b

fraudulently does, or omits to do, anything,

he commits an offence.

2

Subsection (1) applies even if the proposal is not approved.

3

For purposes of this section “officer” includes a shadow director.

4

A person guilty of an offence under this section is liable to imprisonment or a fine, or both.

C7C19C317 Implementation of proposal.

1

This section applies where a voluntary arrangement F23has effect under section 4A.

2

The person who is for the time being carrying out in relation to the voluntary arrangement the functions conferred—

F24a

on the nominee by virtue of the approval F78of the voluntary arrangement by the company or its creditors (or both) pursuant to section 3,

b

by virtue of section 2(4) or 4(2) on a person other than the nominee,

shall be known as the supervisor of the voluntary arrangement.

3

If any of the company’s creditors or any other person is dissatisfied by any act, omission or decision of the supervisor, he may apply to the court; and on the application the court may—

a

confirm, reverse or modify any act or decision of the supervisor,

b

give him directions, or

c

make such other order as it thinks fit.

4

The supervisor—

a

may apply to the court for directions in relation to any particular matter arising under the voluntary arrangement, and

b

is included among the persons who may apply to the court for the winding up of the company or for an administration order to be made in relation to it.

5

The court may, whenever—

a

it is expedient to appoint a person to carry out the functions of the supervisor, and

b

it is inexpedient, difficult or impracticable for an appointment to be made without the assistance of the court,

make an order appointing a person who is qualified to act as an insolvency practitioner F39... F25in relation to the voluntary arrangement, either in substitution for the existing supervisor or to fill a vacancy.

6

The power conferred by subsection (5) is exercisable so as to increase the number of persons exercising the functions of supervisor or, where there is more than one person exercising those functions, so as to replace one or more of those persons.

C8C31F267A Prosecution of delinquent officers of company.

F861

This section applies where the approval of a voluntary arrangement in relation to a company has taken effect under section 4A.

C92

F85If it appears to the supervisor that any past or present officer of the company has committed an offence in connection with the voluntary arrangement, the supervisor must forthwith

a

report the matter to the appropriate authority, and

b

provide the appropriate authority with such information and give the authority such access to and facilities for inspecting and taking copies of documents (being information or documents in the possession or under the control of the F87... supervisor and relating to the matter in question) as the authority requires.

  • In this subsection, “the appropriate authority” means—

    1. i

      in the case of a company registered in England and Wales, the Secretary of State, and

    2. ii

      in the case of a company registered in Scotland, the Lord Advocate.

3

Where a report is made to the Secretary of State under subsection (2), he may, for the purpose of investigating the matter reported to him and such other matters relating to the affairs of the company as appear to him to require investigation, exercise any of the powers which are exercisable by inspectors appointed under section 431 or 432 of the F27the Companies Act 1985 to investigate a company’s affairs.

4

For the purpose of such an investigation any obligation imposed on a person by any provision of the F28the Companies Acts to produce documents or give information to, or otherwise to assist, inspectors so appointed is to be regarded as an obligation similarly to assist the Secretary of State in his investigation.

5

An answer given by a person to a question put to him in exercise of the powers conferred by subsection (3) may be used in evidence against him.

6

However, in criminal proceedings in which that person is charged with an offence to which this subsection applies—

a

no evidence relating to the answer may be adduced, and

b

no question relating to it may be asked,

by or on behalf of the prosecution, unless evidence relating to it is adduced, or a question relating to it is asked, in the proceedings by or on behalf of that person.

7

Subsection (6) applies to any offence other than—

a

an offence under section 2 or 5 of the M1Perjury Act 1911 (false statements made on oath otherwise than in judicial proceedings or made otherwise than on oath), or

b

an offence under section 44(1) or (2) of the M2Criminal Law (Consolidation) (Scotland) Act 1995 (false statements made on oath or otherwise than on oath).

8

Where a prosecuting authority institutes criminal proceedings following any report under subsection (2), the F88... supervisor, and every officer and agent of the company past and present (other than the defendant or defender), shall give the authority all assistance in connection with the prosecution which he is reasonably able to give.

For this purpose—

  • agent” includes any banker or solicitor of the company and any person employed by the company as auditor, whether that person is or is not an officer of the company,

  • prosecuting authority” means the Director of Public Prosecutions, the Lord Advocate or the Secretary of State.

9

The court may, on the application of the prosecuting authority, direct any person referred to in subsection (8) to comply with that subsection if he has failed to do so.

F29C317B Arrangements coming to an end prematurely.

For the purposes of this Part, a voluntary arrangement the approval of which has taken effect under section 4A F89... comes to an end prematurely if, when it ceases to have effect, it has not been fully implemented in respect of all persons bound by the arrangement by virtue of section 5(2)(b)(i) F90....