SCHEDULES

SCHEDULE 6Conduct of FMI administration

Section 121

1

The following provisions of this Schedule provide for—

a

the general powers and duties of FMI administrators (by application of provisions about administrators), and

b

the general process and effects of FMI administration (by application of provisions about administration).

2

The provisions set out in the Tables apply in relation to FMI administration as in relation to administration, with—

a

the modifications set out in paragraph 3,

b

any other modification specified in the Tables, and

c

any other necessary modification.

3

The modifications are that—

a

a reference to the administrator is a reference to the FMI administrator,

b

a reference to administration is a reference to FMI administration,

c

a reference to an administration application is a reference to an FMI administration application,

d

a reference to an administration order is a reference to an FMI administration order,

e

F1except where otherwise specified in Table 2, a reference to a company is a reference to the infrastructure company, and

f

a reference to the purpose of administration (other than the reference in paragraph 111(1) of Schedule B1) is a reference to the objective in section 115.

4

Powers conferred by this Part of this Act and by the 1986 Act (as applied) are in addition to, and not in restriction of, any existing powers of instituting proceedings against any contributory or debtor of an infrastructure company, or the estate of any contributory or debtor, for the recovery of any call or other sum.

5

A reference in an enactment or other document to anything done under a provision applied by this Part of this Act includes a reference to the provision as applied.

TABLE 1 OF APPLIED PROVISIONSSCHEDULE B1 TO THE INSOLVENCY ACT 1986

Provision of Schedule B1

Subject

Modification

Para. 40(1)(a)

Dismissal of pending winding-up petition

Para. 41

Dismissal of administrative or other receiver

Para. 42

Moratorium on insolvency proceedings

Ignore sub-paras. (4) and (5).

Para. 43

Moratorium on other legal process

Para. 44(1)(a) and (5)

Interim moratorium

Para. 46

Announcement of appointment

Ignore sub-para. (6)(b) and (c).

Paras. 47 and 48

Statement of affairs

Para. 49

Administrator's proposals

a

The administrator must obtain the approval of the Bank of England to any proposals under sub-para. (1).

b

Treat the reference in sub-para. (2)(b) to the objective mentioned in para. 3(1)(a) or (b) as a reference to the objective in section 115 of this Act.

c

Ignore sub-para. (3)(b).

Para. 59

General powers

Para. 60 and Schedule 1

General powers

The exercise of powers under Schedule 1 is subject to section 115 of this Act.

Para. 61

Directors

Para. 62

Power to call meetings of creditors

Para. 63

Application to court for directions

a

Before making an application in reliance on this paragraph the FMI administrator must give notice to the Bank of England, which is to be entitled to participate in the proceedings.

b

In making directions the court must have regard to the objective in section 115 of this Act.

Para. 64

Management powers

Para. 65

Distribution to creditors

Para. 66

Payments

Para. 67

Taking custody of property

Para. 68

Management

a

Ignore sub-paras. (1) and (3).

b

The Bank of England may apply to the court for the variation or revocation of any directions given by the court.

Para. 69

Agency

Para. 70

Floating charges

Para. 71

Fixed charges

Para. 72

Hire-purchase property

Para. 73

Protection for secured and preferential creditors

Para. 74

Challenge to administrator's conduct

For sub-para. (2) there is to be taken to be substituted—

2

Where a company is in FMI administration, a creditor or member of the company may apply to the court claiming that the FMI administrator is conducting himself or herself in a manner preventing the achievement of the objective of the FMI administration as quickly and efficiently as is reasonably practicable.

Para. 75

Misfeasance

In addition to applications that may anyway be made under para. 75, an application may be made by the FMI administrator or the Bank of England.

Para. 79

Court ending administration on application of administrator

For sub-paras. (1) to (3) there are to be taken to be substituted—

1

On an application made by a person mentioned in sub-paragraph (2), the court may provide for the appointment of an FMI administrator of a company to cease to have effect from a specified time.

2

The persons who may apply to the court under sub-paragraph (1) are—

a

the Bank of England;

b

with the consent of the Bank, the FMI administrator.

Para. 84

Termination: no more assets for distribution

Para. 85

Discharge of administration order

Para. 86

Notice to Companies Registrar of end of administration

Para. 87

Resignation

An FMI administrator may not resign under para. 87 without giving 28 days' notice of the intention to do so to the Bank of England.

Para. 88

Removal

An application for an order removing an FMI administrator from office may be made only by or with the consent of the Bank of England.

Para. 89

Disqualification

The notice under sub-para. (2) must be given to the Bank of England.

Paras. 90 and 91

Replacement

a

Para. 91(1) applies as if the only person who could make an application were the Bank of England.

b

Ignore para. 91(2).

Para. 98

Discharge

Ignore sub-paras. (2)(b) F4and (ba)F7, (3) and (3A) .

Para. 99

Vacation of office: charges and liabilities

In the application of sub-para. (3), payments may be made only—

  1. a

    in accordance with directions of the Bank of England, and

  2. b

    if the Bank is satisfied that they will not prejudice the objective in section 115 of this Act.

Paras. 100 to 103

Joint administrators

An application under para. 103 may be made only by the Bank of England.

Para. 104

Validity

Para. 106 (and section 430 and Schedule 10)

Fines

Paras. 107 to 109

Extension of time limits

Para. 110

Amendment of provisions about time

An order under para. 110 may amend a provision of the Schedule as it applies by virtue of this Act (whether or not in the same way as it amends the provision as it applies otherwise).

Para. 111

Interpretation

Paras. 112 to 116

Scotland

TABLE 2 OF APPLIED PROVISIONSOTHER PROVISIONS OF THE INSOLVENCY ACT 1986

Section

Subject

Modification or comment

F5Section 176ZB

Application of proceeds of office-holder claims

Section 233

Utilities

Section 234

Getting in company's property

Section 235

Duty to co-operate with office-holder

Section 236

Inquiry into company's dealings

Section 237

Section 236: enforcement by court

Section 238

Transactions at an undervalue (England and Wales)

Section 239

Preferences (England and Wales)

Section 240

Ss. 238 and 239: relevant time

Section 241

Orders under ss. 238 and 239

a

In considering making an order in reliance on section 241 the court must have regard to the objective in section 115 of this Act.

b

Ignore subsections (2A)(a) and (3) to (3C).

Section 242

Gratuitous alienations (Scotland)

Section 243

Unfair preferences (Scotland)

In considering the grant of a decree under subsection (5) the court must have regard to the objective in section 115 of this Act.

Section 244

Extortionate credit transactions

Section 245

Avoidance of floating charges

Section 246

Unenforceability of liens

F3Sections 246ZA to 246ZC

Administration: penalisation of directors etc

F3Section 246ZD

Power to assign certain causes of action

F6Sections 246ZE and 246ZF

F6Decisions by creditors (company insolvency)

F6Section 246C

F6Creditors’ ability to opt out of receiving certain notices

F6Section 248A

F6Meaning of “opted-out creditor”

Sections 386 and 387, and Schedule 6 (and Schedule 4 to the Pension Schemes Act 1993)

Preferential debts

Section 389

Offence of acting without being qualified

Treat references to acting as an insolvency practitioner as references to acting as an FMI administrator.

F2Sections 390 to 391T

Authorisation and regulation of insolvency practitioners

(a) In section 390 treat references to acting as an insolvency practitioner as references to acting as an FMI administrator.

(b) For subsection (2) of that section there is to be taken to be substituted—

“(2) A person is not qualified to act as an FMI administrator at any time unless at that time the person is fully authorised to act as an insolvency practitioner or partially authorised to act as an insolvency practitioner only in relation to companies.”.

(c) An order under section 391 has effect in relation to any provision applied for the purposes of FMI administration.

(d) In sections 390A, 390B(1) and (3), 391O(1)(b) and 391R(3)(b), in a reference to authorisation or permission to act as an insolvency practitioner in relation to (or only in relation to) companies the reference to companies has effect without the modification in paragraph 3(e) of this Schedule.

(e) In sections 391Q(2)(b) and 391S(3)(e) the reference to a company has effect without the modification in paragraph 3(e) of this Schedule.

Sections 423 to 425

Transactions defrauding creditors

In considering granting leave under section 424(1) or making an order in reliance on section 425, the court must have regard to the objective in section 115 of this Act.

Sections 430 to 432 and Schedule 10

Offences

I16

1

The Treasury may by order amend this Schedule so as to make further modifications.

2

The further modifications that may be made are confined to such modifications of—

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 Treasury consider appropriate in relation to any provision made by or under this Part of this Act.

3

An order under this paragraph may also make modifications of the provisions of this Schedule.