Part II APPOINTMENTMENT AND REGULATION OF UNDERTAKERS

CHAPTER II ENFORCEMENT OF INSOLVENCY

Enforcement orders

C1C2C3C4C5C10C9C11C1518 Orders for securing compliance with certain provisions.

1

Subject to subsection (2) and sections 19 and 20 below, where in the case of any company holding an appointment under Chapter I of this Part F5or F33any person holding a licence under Chapter 1A of this Part the Secretary of State or the Director is satisfied—

a

that that company F38or that person is contravening—

i

any condition of the company’s appointment F6or F31the person's licence in relation to which he is the enforcement authority; or

ii

any statutory or other requirement which is enforceable under this section and in relation to which he is the enforcement authority;

or

b

that that company F37or that personF3is likely to contravene any such condition or requirement,

he shall by a final enforcement order make such provision as is requisite for the purpose of securing compliance with that condition or requirement.

F71A

Subject to subsection (2) and sections 19 and 20 below, where—

a

in the case of any company holding an appointment under Chapter 1 of this Part, the Secretary of State or the Authority is satisfied that the company—

i

is causing or contributing to a contravention of a condition or requirement such as is referred to in paragraph (a)(i) or (ii) of subsection (1) above by F28a person holding a licence under Chapter 1A of this Part; or

ii

is likely to cause or contribute to any such contravention; or

b

in the case of F35any person holding a licence under Chapter 1A of this Part, the Secretary of State or the Authority is satisfied that F30the person—

i

is causing or contributing to a contravention of a condition or requirement such as is referred to in paragraph (a)(i) or (ii) of subsection (1) above by a company holding an appointment under Chapter 1 of this Part; or

ii

is likely to cause or contribute to any such contravention,

he or it shall by a final enforcement order make such provision as is requisite for the purpose of securing compliance with that condition or requirement.

2

Subject to section 19 below, where in the case of any company holding an appointment under Chapter I of this Part F8or F40any person holding a licence under Chapter 1A of this Part—

a

it appears to the Secretary of State or the Director as mentioned in paragraph (a) or (b) of subsection (1) F9or (1A) above; and

b

it appears to him that it is requisite that a provisional enforcement order be made,

he may (instead of taking steps towards the making of a final order) by a provisional enforcement order make such provision as appears to him requisite for the purpose of securing compliance with the condition or requirement in question.

3

In determining for the purposes of subsection (2)(b) above whether it is requisite that a provisional enforcement order be made, the Secretary of State or, as the case may be, the Director shall have regard, in particular, to the extent to which any person is likely to sustain loss or damage in consequence of anything which, in contravention of any condition or of any statutory or other requirement enforceable under this section, is likely to be done, or omitted to be done, before a final enforcement order may be made.

4

Subject to sections 19 and 20 below, where the Secretary of State or the Director has made a provisional enforcement order, he shall confirm it, with or without modifications, if—

a

he is satisfied that the company to which the order relates—

i

is contravening any condition or statutory or other requirement in relation to which he is the enforcement authority; or

F4ii

is likely to contravene any such condition or requirement;F10or

iii

is causing or contributing to a contravention of any such condition or requirement; or

iv

is likely to cause or contribute to any such contravention;

and

b

the provision made by the order (with any modifications) is requisite for the purpose of securing compliance with that condition or requirement.

5

An enforcement order—

a

shall require the company to which it relates (according to the circumstances of the case) to do, or not to do, such things as are specified in the order or are of a description so specified;

b

shall take effect at such time, being the earliest practicable time, as is determined by or under the order; and

c

may be revoked at any time by the enforcement authority who made it.

6

For the purposes of this section and the following provisions of this Act—

a

the statutory and other requirements which shall be enforceable under this section in relation to a company holding an appointment under Chapter I of this Part F11or F42a person holding a licence under Chapter 1A of this Part shall be such of the requirements of any enactment or of any subordinate legislation as—

i

are imposed in consequence of that appointment F12or licence; and

ii

are made so enforceable by that enactment or subordinate legislation;

b

the Director shall be the enforcement authority in relation to the conditions of an appointment under Chapter I of this Part F13or of a licence under Chapter 1A of this Part; and

c

the enforcement authority in relation to each of the statutory and other requirements enforceable under this section shall be the Secretary of State, the Director or either of them, according to whatever provision is made by the enactment or subordinate legislation by which the requirement is made so enforceable.

7

In this section and the following provisions of this Chapter—

  • “enforcement order” means a final enforcement order or a provisional enforcement order;

  • “final enforcement order” means an order under this section other than a provisional enforcement order;

  • “provisional enforcement order” means an order under this section which, if not previously confirmed in accordance with subsection (4) above, will cease to have effect at the end of such period (not exceeding three months) as is determined by or under the order.

F148

Where any act or omission—

a

constitutes a contravention of a condition of an appointment under Chapter 1 of this Part or of a condition of a licence under Chapter 1A of this Part or of a statutory or other requirement enforceable under this section; or

b

causes or contributes to a contravention of any such condition or requirement,

the only remedies for, or for causing or contributing to, that contravention (apart from those available by virtue of this section) shall be those for which express provision is made by or under any enactment and those that are available in respect of that act or omission otherwise than by virtue of its constituting, or causing or contributing to, such a contravention.

C1319 Exceptions to duty to enforce.

1

F1Subject to the Drinking Water (Undertakings) (England and Wales) Regulations 2000Neither the Secretary of State nor the Director shall be required to make an enforcement order in relation to any F25person, or to confirm a provisional enforcement order so made, if he is satisfied—

a

that the contraventions were, or the apprehended contraventions are, of a trivial nature;

F15aa

that the extent to which the F25person caused or contributed to, or was likely to cause or contribute to, a contravention was trivial;

C6b

that the F25person has given, and is complying with, an undertaking to take all such steps as it appears to him for the time being to be appropriate for the F25person to take for the purpose of securing or facilitating compliance with the condition or requirement in question; or

c

that the duties imposed on him by Part I of this Act preclude the making or, as the case may be, the confirmation of the order.

F361A

Before making an enforcement order or confirming a provisional enforcement order, the Authority shall consider whether it would be more appropriate to proceed under the Competition Act 1998.

1B

The Authority shall not make an enforcement order or confirm a provisional enforcement order if it considers that it would be more appropriate to proceed under the Competition Act 1998.

2

The requirement to comply with an undertaking given for the purposes of subsection (1)(b) above shall be treated as a statutory requirement enforceable under section 18 above—

a

by the Secretary of State; or

b

with the consent of or in accordance with a general authorisation given by the Secretary of State, by the Director.

3

Where the Secretary of State or the Director, having notified a F25person that he is considering the making in relation to the F25person of an enforcement order or the confirmation of a provisional enforcement order so made, is satisfied as mentioned in paragraph (a), F16(aa),(b) or (c) of subsection (1) above F2or, in the case of the Director, F34has decided that it would be more appropriate to proceed under the Competition Act 1998 , he shall—

a

serve notice that he is so satisfied F39or has so decided on the F25person;

F44b

publish in such manner as the Secretary of State or the Authority considers appropriate for the purpose of bringing the matters to which the notice relates to the attention of persons likely to be affected by them—

i

a copy of the notice, and

ii

where the Secretary of State or the Authority is satisfied as mentioned in paragraph (b) of subsection (1), a summary of the undertaking describing the steps to be taken under it; and

c

in a case where the Secretary of State is satisfied as mentioned in the said paragraph (b), serve a copy of the notice and of the undertaking given for the purposes of that paragraph on the Director.

F323A

In a case where notice under subsection (3)(a) falls to be served by the Welsh Ministers, references to the Secretary of State in subsection (3)(b) are to be read as references to the Welsh Ministers.

C74

The requirements of subsection (3) above shall not apply, in the case of any proposed order or confirmation in respect of a direction under section 208 below, to the extent that the Secretary of State directs that they should not be complied with in the interests of national security.

C1420 Procedure for enforcement orders.

1

Before making a final enforcement order F19under section 18(1) above or confirming a provisional enforcement order F20in a case in which section 18(4)(a)(i) or (ii) above applies , the Secretary of State or the Director shall give notice—

a

stating that he proposes to make or confirm the order and setting out the effect of the order;

b

setting out—

i

the condition or requirement for the purpose of securing compliance with which the order is to be made or confirmed;

ii

the acts or omissions which, in his opinion, constitute or would constitute contraventions of that condition or requirement; and

iii

the other facts which, in his opinion, justify the making or confirmation of the order;

and

c

specifying the period (not being less than F17twenty-one days from the date of publication of the notice) within which representations or objections with respect to the proposed order or proposed confirmation may be made,

and shall consider any representations or objections which are duly made and not withdrawn.

F211A

Before making a final enforcement order under section 18(1A) above or confirming a provisional enforcement order in a case in which section 18(4)(a)(iii) or (iv) above applies, the Secretary of State or the Authority shall give notice—

a

stating that he or it proposes to make or confirm the order and setting out the effect of the order;

b

setting out—

i

the condition or requirement for the purposes of securing compliance with which the order is to be made or confirmed;

ii

the acts or omissions which, in his or its opinion, cause or contribute to or would cause or contribute to the contravention of that condition or requirement; and

iii

the other facts which, in his or its opinion, justify the making or confirmation of the order; and

c

specifying the period (not being less than twenty-one days from the date of publication of the notice) within which representations or objections to the proposed order or proposed confirmation may be made,

and shall consider any representations or objections which are duly made and not withdrawn.

2

A notice under subsection (1) F22or (1A) above shall be given—

a

by publishing the notice in such manner as the Secretary of State or, as the case may be, the Director considers appropriate for the purpose of bringing the matters to which the notice relates to the attention of persons likely to be affected by them; and

b

by serving a copy of the notice, and a copy of the proposed order or of the order proposed to be confirmed, on the F27person to whom the order relates and, where the notice is given by the Secretary of State, on the Director.

3

Neither the Secretary of State nor the Director shall make a final enforcement order with modifications, or confirm a provisional enforcement order with modifications, except—

a

with the consent to the modifications of the F27person to whom the order relates; or

b

after complying with the requirements of subsection (4) below.

4

The requirements mentioned in subsection (3) above are that the Secretary of State or, as the case may be, the Director shall—

a

serve on the F27person to whom the order relates such notice as appears to him to be requisite of his proposal to make or confirm the order with modifications;

b

in that notice specify the period (not being less than F18twenty-one days from the date of the service of the notice) within which representations or objections with respect to the proposed modifications may be made; and

c

consider any representations or objections which are duly made and not withdrawn.

5

As soon as practicable after making an enforcement order or confirming a provisional enforcement order, the Secretary of State or, as the case may be, the Director shall—

a

serve a copy of the order on the F27person to whom the order relates and, where this subsection applies in the case of an order made or confirmed by Secretary of State, on the Director; and

b

publish such a copy in such manner as he considers appropriate for the purpose of bringing the order to the attention of persons likely to be affected by it.

6

Before revoking an enforcement order, other than an unconfirmed provisional order, the Secretary of State or the Director shall give notice—

a

stating that he proposes to revoke the order and setting out its effect; and

b

specifying the period (not being less than twenty-eight days from the date of publication of the notice) within which representations or objections with respect to the proposed revocation may be made,

and shall consider any representations or objections which are duly made and not withdrawn.

7

If, after giving a notice under subsection (6) above, the Secretary of State or the Director decides not to revoke the order to which the notice relates, he shall give notice of that decision.

8

A notice under subsection (6) or (7) above shall be given—

a

by publishing the notice in such manner as the Secretary of State or, as the case may be, the Director considers appropriate for the purpose of bringing the matters to which the notice relates to the attention of persons likely to be affected by them; and

b

by serving a copy of the notice on the F27person to whom the order relates and, where the notice is given by the Secretary of State, on the Director.

C89

The requirements of the preceding provisions of this section shall not apply, in the case of any order in respect of a contravention of a direction under section 208 below, to the extent that the Secretary of State directs that they should not be complied with in the interests of national security.

21 Validity of enforcement orders.

1

If the F41person to whom an enforcement order relates is aggrieved by the order and desires to question its validity on the ground—

a

that its making or confirmation was not within the powers of section 18 above; or

b

that any of the requirements of section 20 above have not been complied with in relation to it,

the F43person may, within forty-two days from the date of service on it of a copy of the order, make an application to the High Court under this section.

2

On any such application the High Court may, if satisfied that the making or confirmation of the order was not within those powers or that the interests of the F29person have been substantially prejudiced by a failure to comply with those requirements, quash the order or any provision of the order.

3

Except as provided by this section, the validity of an enforcement order shall not be questioned in any legal proceedings whatsoever.

C1222 Effect of enforcement order.

1

The obligation to comply with an enforcement order shall be a duty owed to any person who may be affected by a contravention of the order.

2

Where a duty is owed by virtue of subsection (1) above to any person, any breach of the duty which causes that person to sustain loss or damage shall be actionable at the suit of that person.

3

In any proceedings brought against any F24person in pursuance of subsection (2) above, other than proceedings in respect of so much of a contravention of any order as consists in a breach of the duty imposed by virtue of section 68(1)(a) F23or (1A)(a) below, it shall be a defence for the F24person to show that F26the person took all reasonable steps and exercised all due diligence to avoid contravening the order.

4

Without prejudice to any right which any person may have by virtue of subsection (1) above to bring civil proceedings in respect of any contravention or apprehended contravention of an enforcement order, compliance with any such order shall be enforceable by civil proceedings by the relevant enforcement authority for an injunction or for any other appropriate relief.

5

In subsection (4) above “the relevant enforcement authority”, in relation to any enforcement order, means the Secretary of State or the Director or either of them according to who is the enforcement authority in relation to the condition or requirement compliance with which was to be secured by the order.