General powers, duties and effect15
1
Without prejudice to any specific powers conferred on an administrator by these Regulations, an administrator may do anything necessary or expedient for the pursuit of the special administration objectives.
2
The administrator is an officer of the court.
3
The following provisions of this regulation provide for —
a
general powers and duties of administrators (by application of provisions about administrators in Schedule B1 administration); and
b
the general process and effect of special administration (by application of provisions about Schedule B1 administration).
4
The provisions of Schedule B1 and other provisions of the Insolvency Act set out in the Tables apply in relation to special administration as in relation to other insolvency proceedings with the modifications set out—
a
in paragraph (5) (in respect of the provisions listed in Table 1);
b
in paragraph (6) (in respect of the provisions listed in Table 2),
and any other modification specified in the Tables.
5
The modifications in respect of the provisions referred to in Table 1 are that—
a
a reference to the administrator is a reference to the administrator appointed under a special administration order;
b
a reference to administration is a reference to special administration;
c
a reference to an administration order is a reference to a special administration order;
d
a reference to a company is a reference to an investment bank;
e
a reference to the purpose of administration is a reference to the special administration objectives; and
f
a reference to a provision of the Insolvency Act is a reference to that provision as applied by this regulation.
6
The modifications in respect of the provisions referred to in Table 2 are that—
a
a reference to the liquidator is a reference to the administrator appointed under a special administration order;
b
a reference to winding up is a reference to special administration;
c
a reference to winding up by the court is a reference to the imposition of special administration by order of the court;
d
a reference to being wound up under Part 4 or 5 of the Insolvency Act is a reference to an investment bank being in special administration;
e
a reference to the commencement of winding up is a reference to the commencement of special administration;
f
a reference to going into liquidation is a reference to entering special administration;
g
a reference to liquidation or to insolvent liquidation is a reference to special administration;
h
a reference to a winding up order is a reference to a special administration order;
i
a reference to a company is a reference to an investment bank; and
j
a reference to a provision of the Insolvency Act is a reference to that provision as applied by this regulation.
Schedule B1 | Subject | Modification or comment |
|---|---|---|
Para 40(1)(a) | Dismissal of pending winding up petition | |
Para 42 | Moratorium on insolvency proceedings | Sub-paragraphs (4)(a) and (4)(aa) are not applied. |
Para 43 | Moratorium on other legal processes | |
Para 44(1) and (5) | Interim moratorium | |
Para 45 | Publicity | |
Para 46 | Announcement of administrator's appointment | (a) In sub-paragraph (3)(a), in addition to obtaining the list of creditors, the administrator shall also obtain as complete a list as possible of the clients of the investment bank. (b) In sub-paragraph (3)(b), the administrator shall send a notice of their appointment to each client of whose claim and address the administrator is aware. (c) Where the special administration application has not been made by the F1FCA, notice of the administrator's appointment shall also be sent under sub-paragraph (5) to the F1FCA. F2(ca) Where the special administration application relates to a PRA-authorised person and has not been made by the PRA, notice of the administrator’s appointment shall also be sent under sub-paragraph (5) to the PRA. (d) Sub-paragraphs (6)(b) and (c) are not applied. |
Para 47 | Statement of company's affairs | In sub-paragraph (2), the statement must also include particulars (to the extent prescribed) of the client assets held by the investment bank. |
Para 48 | Statement of company's affairs | |
Para 49 | Statement of proposals | Paragraphs 49(1) to (3), 51, 53, 54 and 55 do not apply where the F3FCA or, where relevant, the PRA gives a direction under regulation 16 and the direction has not been withdrawn: see regulations 16 - 19. |
Para 49 | (a) Sub-paragraph (2)(b) is not applied. (b) Under sub-paragraph (4), the administrator shall also send a copy of the statement of proposals to— (i) every client of whose claim the administrator is aware and has a means of contacting; and (ii) the F4FCA and, where the investment bank concerned is a PRA-authorised person, the PRA. (c) The administrator shall also give notice in the prescribed manner that the statement of proposals is to be provided free of charge to a market infrastructure body who applies in writing to a specified address. | |
Para 50 | Creditors' meeting | (a) In sub-paragraph (1), the administrator shall also summon the clients referred to in paragraph 49(4) to the meeting of creditors and such clients shall be given the prescribed period of notice under sub-paragraph (1)(b). (b) The F4FCA and, where the investment bank concerned is a PRA-authorised person, the PRA may appoint a person to attend a meeting of creditors and make representations as to any matter for decision. |
Para 51 | Requirement for initial creditors' meeting | (a) Each copy of an administrator's proposals sent to a client under paragraph 49 shall be accompanied by an invitation to the initial creditors' meeting. (b) The administrator's proposals sent to the F4FCA and, where the investment bank concerned is a PRA-authorised person, the PRA must also be accompanied by an invitation to the initial creditors' meeting. |
Para 53 | Business and result of initial creditors' meeting | (a) Insolvency rules shall prescribe how clients shall vote at meetings of creditors. (b) Under sub-paragraph (2), if the F5FCA has not appointed a person to attend the meeting, the administrator must also report any decision taken to the F5FCA. F6(c) If the investment bank concerned is a PRA-authorised person, and if the PRA has not appointed a person to attend the meeting under sub-paragraph (2), the administrator must also report any decision taken to the PRA. |
Para 54 | Revision of administrator's proposals | (a) If the revision proposed by the administrator affects both creditors and clients, then every reference in paragraph 54 to creditors includes clients. (b) If the administrator thinks that the revision proposed only affects either creditors or clients, then this paragraph only applies to the affected party, however the party not affected must be informed of the revision in a manner prescribed in insolvency rules. (c) The F4FCA and, where the investment bank concerned is a PRA-authorised person, the PRA must be invited to the creditors' meeting mentioned in sub-paragraph (2)(a). (d) The statement of the proposed revision mentioned in sub-paragraph (2)(b) must also be sent to the F4FCA and, where the investment bank concerned is a PRA-authorised person, the PRA. |
Para 55 | Failure to obtain approval of administrator's proposals | (a) In making an order under sub-paragraph (2) the court must have regard to the special administration objectives. (b) Sub-paragraph (2)(d) is not applied. |
Para 56 | Further creditors' meetings | The F4FCA and, where the investment bank concerned is a PRA-authorised person, the PRA must be invited to any meeting summoned under this paragraph. |
Para 57 | Creditors' committee | (a) A creditors' committee can only be established by a creditors' meeting to which creditors and clients have both been given notice. (b) The F4FCA and, where the investment bank concerned is a PRA-authorised person, the PRA may appoint a person to attend a meeting of the creditors' committee and make representations as to any matter for decision. (c) Insolvency rules shall ensure that, where a meeting of creditors resolves to establish a creditors' committee, the makeup of the creditors' committee is a reflection of all parties with an interest in the achievement of the special administration objectives. |
Para 58 | Correspondence instead of creditors' meeting | |
Para 59 | Functions of an administrator | |
Para 60 (and Schedule 1 to the Insolvency Act) | General powers | Certain powers in Schedule 4 of the Insolvency Act are also applied (see Table 2). |
Para 61 | Directors | |
Para 62 | Power to call meetings | The administrator may also call a meeting of clients or contributories. |
Para 63 | Application to court for directions | |
Para 64 | Management powers | |
Para 65 | Distribution to creditors | Sub-paragraph (3) is not applied. |
Para 66 | Payments | |
Para 67 | Property | |
Para 68 | Management | In this paragraph, references to proposals approved under paragraphs 53 or 54 include— (a) proposals agreed with the F7FCA or, where relevant, the PRA under regulations 17 or 18; or (b) proposals in respect of which the court has made an order dispensing with the need for agreement in accordance with those regulations, without need for approval. |
Para 69 | Agency | |
Para 70 | Floating charge | |
Para 71 | Fixed charge | |
Para 72 | Hire purchase property | |
Para 73 | Protection for secured or preferential creditors | Sub-paragraph (2)(d) is not applied. |
Para 74 | Challenge to administrator's conduct | (a) The F4FCA and, where the investment bank concerned is a PRA-authorised person, the PRA may also make an application under this paragraph on the grounds that— (i) the administrator is acting or has acted so as unfairly to harm the interests of some or all of the members, creditors or clients; or (ii) the administrator is proposing to act in a way which would unfairly harm the interests of some or all of the members, creditors or clients. (b) A client may also make an application under sub-paragraph (1) or (2). (c) Where the F8FCA or the PRA has given a direction under regulation 16 which has not been withdrawn, an order may not be made under this paragraph if it would impede or prevent compliance with the direction. (d) Any of the following persons may make an application under this paragraph on the grounds that the administrator is not taking any action in response to a request from that person under regulation 13(2) and that the person is of the opinion that the action requested would not lead to a material reduction in the value of the property of the investment bank— (i) the Bank of England, (ii) the Treasury, (iii) the F8FCA or the PRA, or (iv) a market infrastructure body. (e) F10FSCS may make an application under this paragraph on the grounds that the administrator is not performing the duties set out in regulation 10A as quickly or as efficiently as is reasonably practicable. (f) Any of the following persons may make an application under this paragraph on the grounds that the administrator has made, or proposes to make, a partial property transfer (within the meaning given in regulation 10B(13)) (“relevant transfer”) in contravention of regulation 10E, 10F or 10G— (i) the Bank of England; (ii) the FCA; (iii) where the investment bank is a PRA-authorised person, the PRA. (g) Any person, other than the investment bank, who is party to an arrangement of a kind referred to in regulation 10E(1) or 10F(1) may make an application under this paragraph on the grounds that the administrator has made, or proposes to make, a relevant transfer in contravention of that regulation. (h) A recognised investment exchange, a recognised clearing house or any person, other than the investment bank, who is party to a market contract may make an application under this paragraph on the grounds that the administrator has made, or proposes to make, a relevant transfer in contravention of regulation 10G. (i) Where an application is made under this paragraph on the grounds that the administrator has made a relevant transfer in contravention of regulation 10G— (i) sub-paragraphs (3)(a), (d) and (e) and (4) are not applied; (ii) the court may make an order declaring that the transfer was made in contravention of the regulation concerned. (j) Where an application is made under this paragraph on the grounds that the administrator has made a relevant transfer in contravention of regulation 10E or 10F, the court may make such order as it thinks fit for restoring the position to what it would have been if the transfer had been made in contravention of the regulation concerned. (k) The FCA and, where the investment bank is a PRA-authorised person, the PRA may make an application under this paragraph on the grounds that the administrator has failed to carry out a client money reconciliation in accordance with regulation 10H(2) or to transfer an amount in accordance with regulation 10H(3) or (4). |
Para 75 | Misfeasance | A client and the F4FCA and, where the investment bank concerned is a PRA-authorised person, the PRA shall be included in the list of persons who may make an application under sub-paragraph (2). |
Para 79 | Court ending administration on application of administrator | Sub-paragraph (2) is not applied. See regulation 20 |
Para 81 | Court ending administration on application of a creditor | This paragraph is not applied where the administrator was appointed by the court on the application of the F8FCA or the PRA or the Secretary of State. |
Para 84 | Termination: no more assets for distribution | (a) The administrator shall only send a notice under sub-paragraph (1) if the investment bank no longer holds client assets. (b) In sub-paragraph (5), a copy of the notice should also be sent to every client of the investment bank of whom the administrator is aware and the F4FCA and, where the investment bank concerned is a PRA-authorised person, the PRA. See regulation 21 |
Para 85 | Discharge of administration order | |
Para 86 | Notice to Companies Registrar at the end of administration | |
Para 87 | Resignation | (a) Where the administrator was appointed by the court on the application of the F8FCA or the PRA or the Secretary of State, the notice of the resignation given in accordance with sub-paragraph (2)(a) must be also given to the applicant. (b) Sub-paragraphs (2)(b) to (d) are not applied. |
Para 88 | Removal | |
Para 89 | Disqualification | (a) Where the administrator was appointed by the court on the application of the F8FCA or the PRA or the Secretary of State, the notice given in accordance with sub-paragraph (2)(a) must be also given to the applicant. (b) Sub-paragraphs (2)(b) to (d) are not applied. |
Para 90 | Replacement | The reference to paragraphs 91 to 95 is to paragraph 91. |
Para 91 | Replacement | The F4FCA and, where the investment bank concerned is a PRA-authorised person, the PRA is added to the list of persons who may make an application to appoint an administrator but to whom the restrictions in sub-paragraph (2) apply. |
Para 98 | Discharge | Sub-paragraphs (2)(b) and (3) are not applied. |
Para 99 | Vacation of office: charges and liabilities | (a) In sub-paragraph (3), the former administrator's remuneration and expenses incurred in respect of the pursuit of Objective 1 will be charged on and payable out of the client assets. (b) In sub-paragraph (4)(b), the reference to any charge arising under sub-paragraph (3) does not include a charge on client assets. |
Para 100 | Joint administrators | |
Para 101 | Joint administrators | In sub-paragraph (3), the reference to paragraphs 87 to 99 is to paragraphs 87 to 91 and 98 to 99. |
Para 102 | Joint administrators | |
Para 103 | Joint administrators | (a) In sub-paragraph (2), the reference to paragraph 12(1)(a) to (e) is to regulation 5(1). (b) Sub-paragraphs (3) to (5) are not applied. |
Para 104 | Presumption of validity | |
Para 105 | Majority decision of directors | |
Para 106 (and section 430 of and Schedule 10 to the Insolvency Act) | Fines | Sub-paragraphs (2)(a), (2)(b) and (2)(l) to (2)(n) are not applied. |
Para 107 | Extension of time limit | In considering an application under paragraph 107, the court must have regard to the special administration objectives. |
Para 108 | Extension of time limit | (a) To obtain consent under this paragraph, the administrator must also obtain consent of those clients whose claims amount to more than 50% of the total amount of claims for client assets, disregarding the claims of those clients who were sent a copy of the statement of proposals but who did not respond to an invitation to give or withhold consent. (b) Sub-paragraph (3) is not applied. |
Para 109 | Extension of time limit | |
Para 111 | Interpretation | The definition of “administrator” and sub-paragraph (1A)(b) and (c) and sub-paragraph (1B) are not applied. |
Paras 112- 116 | Scotland |
Insolvency Act | Subject | Modification or comment |
|---|---|---|
Sections 74 and 76- 83 | Contributories | |
Section 167 (and Schedule 4) | Powers of the liquidator | (a) In subsections (1) and (2), references to “liquidation committee” is to “creditors' committee”. (b) A client may also apply to the court under subsection (3). (c) In Schedule 4, paragraphs 4 to 10 and 12 shall not apply, and in paragraph 13, the reference to “winding up the company's affairs and distributing its assets” is to “pursuing the special administration objectives”. |
Section 168(4) | Discretion in managing and distributing assets | |
Section 176 | Preferential charges on goods distrained | |
Section 176A | Unsecured creditors | |
Section 178 | Disclaimer of onerous property | |
Section 179 | Disclaimer of leaseholds | |
Section 180 | Land subject to rent charge | |
Section 181 | Disclaimer: powers of court | |
Section 182 | Powers of court (leaseholds) | |
Section 183 | Effect of execution or attachment (England and Wales) | Subsection (2)(a) is not applied. |
Section 184 | Duties of officers | In subsection (1), ignore the reference to a resolution having been passed for voluntary winding up. |
Section 185 | Effect of diligence (Scotland) | In the application of section 37(1) of the Bankruptcy (Scotland) Act 1985 (c. 66), the reference to an order of the court awarding winding up is a reference to the making of the special administration order. |
Section 186 | Rescission of contracts by the court | |
Section 187 | Power to make over assets to employees | |
Section 193 | Unclaimed dividends (Scotland) | |
Section 194 | Resolutions passed at adjourned meetings | |
Section 196 | Judicial notice of court documents | |
Section 197 | Commission for receiving evidence | |
Section 198 | Court order for examination of persons in Scotland | |
Section 199 | Costs of application for leave to proceed (Scottish companies) | |
Section 206 | Fraud in anticipation of winding up | In subsection (1), omit the reference to passing a resolution for voluntary winding up. |
Section 207 | Transactions in fraud of creditors | In subsection (1), omit the reference to passing a resolution for voluntary winding up. |
Section 208 | Misconduct in course of winding up | In subsection (1), omit “whether by the court or voluntarily”. |
Section 209 | Falsification of company's books | |
Section 210 | Material omissions from statement | (a) In subsection (1) omit “whether by the court or voluntarily”. (b) In subsection (2), omit “or has passed a resolution for voluntary winding up”. |
Section 211 | False representation to creditors | In subsection (1)— (a) omit “whether by the court or voluntarily”; and (b) a reference to the company's creditors includes a reference to clients of the investment bank. |
Section 212 | Summary remedy | |
Section 213 | Fraudulent trading | |
Section 214 | Wrongful trading | Subsection (6) is not applied. |
Section 215 | Proceedings under section 213 or 214 | |
Section 216 | Restriction on re-use of company names | (a) The reference to “liquidating company” shall be to “company in special administration”. (b) Subsections (7) and (8) are not applied. |
Section 217 | Personal liability for debts following contravention of section 216 | Subsection (6) is not applied. |
Section 218 | Prosecution of delinquent officers and members of company | (a) In subsection (3), ignore the first reference to the official receiver and treat the second reference as a reference to the Secretary of State. (b) In subsection (5) treat the reference to subsection (4) as a reference to subsection (3). (c) Subsections (4) and (6) are not applied. |
Section 219 | Obligations arising under section 218 | Treat the reference to section 218(4) in subsection (1) as a reference to section 218(3). |
Section 233 | Utilities | |
F9Section 233A | Further protection of utilities | |
Section 234 | Getting in the company's property | (a) Subsection (1) is not applied. (b) “Office holder” means the administrator. |
Section 235 | Co-operation with the administrator | (a) Subsections (1) and (4)(b) to (d) are not applied. (b) “Office holder” means the administrator. |
Section 236 | Inquiry into company's dealings | (a) Subsection (1) is not applied. (b) “Office holder” means the administrator. |
Section 237 | Enforcement by the court | |
Section 238 | Transactions at an undervalue (England and Wales) | |
Section 239 | Preferences (England and Wales) | |
Section 240 | Sections 238 and 239: relevant time | (a) In subsection (2)(a), the reference to being unable to pay its debts has the meaning given by regulation 2. (b) Sub-paragraphs (1)(d) and (3)(a) to (d) are not applied. |
Section 241 | Orders under sections 238 and 239 | Subsections (3A) and (3B) are not applied. |
Section 242 | Gratuitous alienations (Scotland) | |
Section 243 | Unfair preferences (Scotland) | |
Section 244 | Extortionate credit transactions | |
Section 245 | Avoidance of floating charges | (a) In subsection (3)(c), the reference to— (i) administration application is to be read as an application for special administration, and (ii) administration order is to a special administration order. (b) In subsection (4)(a) and (b),the reference to being unable to pay its debts has the meaning given by regulation 2. (c) Subsections (3)(d) and (5)(a) to (c) are not applied. |
Section 246 | Unenforceability of liens | (a) Subsection (1) is not applied. (b) “Office holder” means the administrator. |
Section 246A | Remote attendance at meetings | Treat every reference to creditors as including clients. |
Section 246B | Use of websites | |
Section 386 (and Schedule 6 as read with Schedule 4 to the Pensions Schemes Act 1993) | Preferential debts | |
Section 387, subsections (1) and (3A). | “The relevant date” | Treat the reference to “administration” as a reference to special administration. |
Section 389 | Offence of acting without being qualified | (a) Treat the reference to acting as an insolvency practitioner as a reference to acting as the administrator. (b) Subsections (1A) and (2) are not applied. |
Section 390 | Persons not qualified to act | Treat references to acting as insolvency practitioner as references to acting as the administrator. |
Section 391 | Recognised professional bodies | An order under section 391 has effect in relation to any provision applied for the purposes of special administration. |
Section 411 | Insolvency rules | The reference in subsections (1A), (2C) and (3) to Part 2 of the Banking Act 2009 includes a reference to these Regulations. |
Section 414 | Fees orders | (a) The reference in subsection (1) to “Parts I to VII of this Act” includes these Regulations. (b) Ignore the reference to the official receiver. |
Section 423 | Transactions defrauding creditors | Subsection (4) is not applied. |
Sections 424 and 425 | Transactions defrauding creditors | |
Section 426 | Co-operation between courts | References to “insolvency law” includes provisions made by or under these Regulations. |
Sections 430 and 431 (and Schedule 10) | Offences | |
Section 432 | Offences by bodies corporate | In subsection (4) ignore all the provisions of the Insolvency Act listed there except for sections 206 to 211. |
Section 433 | Statements: admissibility | In subsection (1)(a), a statement of affairs prepared “for the purposes of any provision of this Act” includes any statement made for the purposes of a provision of that Act as applied by these Regulations. |
Sections 434B – 434D | Supplementary provisions |