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Banking Act 2009

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103General powers, duties and effectE+W+S+N.I.

This sectionnoteType=Explanatory Notes has no associated

(1)A bank liquidator may do anything necessary or expedient for the pursuit of the Objectives in section 99.

(2)The following provisions of this section provide for—

(a)general powers and duties of bank liquidators (by application of provisions about liquidators), and

(b)the general process and effects of bank insolvency (by application of provisions about winding up).

(3)The provisions set out in the Table apply in relation to bank insolvency as in relation to winding up, with—

(a)the modifications set out in subsection (4),

(b)any other modification specified in the Table, and

(c)any other necessary modification.

(4)The modifications are that—

(a)a reference to the liquidator is a reference to the bank liquidator,

(b)a reference to winding up is a reference to bank insolvency,

(c)a reference to winding up by the court is a reference to the imposition of bank insolvency by order of the court,

(d)a reference to being wound up under Part IV or V of the Insolvency Act 1986 is a reference to being made the subject of a bank insolvency order,

(e)a reference to the commencement of winding up is a reference to the commencement of bank insolvency,

(f)a reference to going into liquidation is a reference to entering bank insolvency,

(g)a reference to a winding-up order is a reference to a bank insolvency order, and

(h)a reference to a company is a reference to the bank.

(5)Powers conferred by this Act, by the Insolvency Act 1986 (as applied) and the Companies Acts are in addition to, and not in restriction of, any existing powers of instituting proceedings against a contributory or debtor of a bank, or the estate of any contributory or debtor, for the recovery of any call or other sum.

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

TABLE OF APPLIED PROVISIONS
Provision of Insolvency Act 1986SubjectModification or comment
Section 127Avoidance of property dispositionsIgnore section 127(2).
Section 128Avoidance of attachment, &c.
Section 130Consequences of winding-up orderIgnore section 130(4).
Section 131Company's statement of affairs

(a)Treat references to the official receiver as references to the bank liquidator.

(b)A creditor or contributory of the bank is entitled to receive a copy of a statement under section 131 on request to the bank liquidator.

Section 135Provisional appointment

(a)Treat the reference to the presentation of a winding-up petition as a reference to the making of an application for a bank insolvency order.

(b)Subsection (2) applies in relation to England and Wales and Scotland (and subsection (3) does not apply).

(c)Ignore the reference to the official receiver.

(d)Only a person who is qualified to act as an insolvency practitioner and who consents to act may be appointed.

(e)A provisional bank liquidator may not pay dividends to creditors.

(f)The appointment of a provisional bank liquidator lapses on the appointment of a bank liquidator.

Section 141Liquidation Committee (England and Wales)

The application of section 141 is subject to—

(a)

sections 100, 101 and 109 of this Act,

(b)

rules under section 411 (as applied by section 125 of this Act) which may, in particular, adapt section 141 to reflect (i) the fact that the bank liquidator is appointed by the court and (ii) the possibility of calling creditors' meetings under other provisions, and

(c)

the omission of references to the official receiver.

Section 142Liquidation Committee (Scotland)

The application of section 142 is subject to—

(a)

sections 100, 101 and 109 of this Act,

(b)

rules under section 411 (as applied by section 125 of this Act) which may, in particular, adapt section 142 to reflect (i) the fact that the bank liquidator is appointed by the court and (ii) the possibility of calling creditors' meetings under other provisions, and

(c)

the omission of references to the official receiver.

Section 143General functions of liquidator

(a)Section 143(1) is subject to Objective 1 in section 99 above.

(b)Ignore section 143(2).

Section 144Custody of property
Section 145Vesting of property
Section 146Duty to summon final meeting

Section 146 is not applied–but section 115 below makes similar provision.

Section 147Power to stay or sist proceedings

An application may be made only by—

(a)

the bank liquidator,

(b)

the FSA,

(c)

the Bank of England,

(d)

the FSCS, or

(e)

a creditor or contributory (but only if the liquidation committee has passed a full payment resolution).

Section 148List of contributories and application of assets

By virtue of the Insolvency Rules the functions under this section are largely delegated to the liquidator–rules by virtue of section 125 may achieve a similar delegation to the bank liquidator.

Section 149Debts due from contributories
Section 150Power to make calls
Section 152Order on contributory: evidence
Section 153Exclusion of creditors
Section 154Adjustment of rights of contributories
Section 155Inspection of books by creditors

In making or considering whether to make an order under section 155 the court shall have regard to Objective 1 in section 99 above.

Section 156Payment of expenses of winding up
Section 157Attendance at company meetings (Scotland)
Section 158Power to arrest absconding contributory
Section 159Powers to be cumulative

Section 159 is not applied–but subsection (5) above makes similar provision.

Section 160Delegation of powers to liquidator (England and Wales)
Section 161Orders for calls on contributories (Scotland)
Section 162Appeals from orders (Scotland)

An appeal may be brought only if the liquidation committee has passed a full payment resolution.

Section 167 and Schedule 4General powers of liquidator
(a)

An application to the court may not be made under section 167(3) unless the liquidation committee has passed a full payment resolution (although a creditor or contributory may apply to the court with respect to any action (or inaction) of the liquidation committee, under section 101(3) above).

(b)

In exercising or considering whether to exercise a power under Schedule 4 the bank liquidator shall have regard to Objective 1 in section 99.

(c)

A reference to the liquidation committee is to the liquidation committee established by section 100.

(d)

The power in paragraph 4 of Schedule 4 includes the power to submit matters to arbitration.

Some additional general powers are conferred by section 104 below.

Section 168Supplementary powers of liquidator

(a)A direction or request under section 168(2) has no effect unless the liquidation committee has passed a full payment resolution.

(b)Section 168(5) also applies in the case of the imposition of bank insolvency by order of the Court of Session.

(c)An application to the court may not be made under section 168(5) unless the liquidation committee has passed a full payment resolution (except as provided in section 100 or 102 above).

Section 169Supplementary powers (Scotland)

(a)Ignore section 169(1).

(b)Powers of the bank liquidator by virtue of section 169(2) are subject to Objective 1 in section 99 above.

Section 170Liquidator's duty to make returns

The liquidation committee is added to the list of persons able to apply under section 170(2).

Section 172Removal of liquidator

Section 172 is not applied to a bank liquidator–but section 108 makes similar provision.

Section 172(1), (2) and (5) are applied to a provisional bank liquidator.
Section 174Release of liquidatorSection 174 is not applied–but section 115 makes similar provision.
Section 175Preferential debts
Section 176Preferential charge on goods restrained
Section 176ZAExpenses of winding up
Section 176AShare of assets for unsecured creditors
Section 177Appointment of special manager
Section 178Power to disclaim onerous property
Section 179Disclaimer of leaseholds
Section 180Land subject to rentcharge
Section 181Disclaimer: powers of court
Section 182Leaseholds
Section 183Effect of execution or attachment (England and Wales)
Section 184Execution of writs (England and Wales)
Section 185Effect of diligence (Scotland)In the application of section 37(1) of the Bankruptcy (Scotland) Act 1985 the reference to an order of the court awarding winding up is a reference to the making of the bank insolvency order.
Section 186Rescission of contracts by court
Section 187Transfer of assets to employees
Section 188Publicity
Section 189Interest on debts
Section 190Exemption from stamp duty
Section 191Company's books as evidence
Section 192Information about pending liquidations
Section 193Unclaimed dividends (Scotland)
Section 194Resolutions passed at adjourned meetings
Section 195Meetings to ascertain wishes of creditors or contributoriesThe power to have regard to the wishes of creditors and contributories is subject to Objective 1 in section 99.
Section 196Judicial notice of court documents
Section 197Commission for receiving evidence
Section 198Court order for examination of persons (Scotland)
Section 199Costs of application for leave to proceed (Scotland)
Section 200Affidavits
Section 206Fraud in anticipation of winding up
Section 207Transactions in fraud of creditors
Section 208Misconduct in course of winding up
Section 209Falsification of company's books
Section 210Material omissions
Section 211False representations to creditors
Section 212Summary remedy against directors, &c.
Section 213Fraudulent trading
Section 214Wrongful trading
Section 215Sections 213 & 214: procedure
Section 216Restriction on re-use of company names
Section 217Personal liability for debts
Section 218Prosecution of officers and members of company

(a)Ignore subsections (4) and (6).

(b)In subsection (3), treat the second reference to the official receiver as a reference to the Secretary of State.

(c)In subsection (5) treat the reference to subsection (4) as a reference to subsection (3).

Section 219Obligations under section 218
Section 231Appointment of 2 or more persons
Section 232Validity of acts
Section 233Utilities
Section 234Getting in company's property
Section 235Co-operation with liquidatorIgnore references to the official receiver
Section 236Inquiry into company's dealingsIgnore references to the official receiver
Section 237Section 236: enforcement by court
Section 238Transactions at undervalue (England and Wales)Anything done by the bank in connection with the exercise of a stabilisation power under Part 1 of this Act is not a transaction at an undervalue for the purposes of section 238.
Section 239Preferences (England and Wales)Action taken by the bank in connection with the exercise of a stabilisation power under Part 1 of this Act does not amount to giving a preference for the purpose of section 239.
Section 240Sections 238 & 239: relevant time
Section 241Orders under sections 238 & 239

Having notice of the relevant proceedings means having notice of—

(a)

an application by the Bank of England, the FSA or the Secretary of State for a bank insolvency order, or

(b)

notice under section 120 below.

Section 242Gratuitous alienations (Scotland)Anything done by the bank in connection with the exercise of a stabilisation power under Part 1 of this Act is not a gratuitous alienation for the purpose of section 242 or any other rule of law.
Section 243Unfair preferences (Scotland)Action taken by the bank in connection with the exercise of a stabilisation power under Part 1 of this Act does not amount to an unfair preference for the purpose of section 243 or any other rule of law.
Section 244Extortionate credit transactions
Section 245Avoidance of floating charges
Section 246Unenforceability of liens
Sections 386 & 387, and Schedule 6 (and Schedule 4 to the Pension Schemes Act 1993)Preferential debts
Section 389Offence of acting without being qualifiedTreat references to acting as an insolvency practitioner as references to acting as a bank liquidator.
Section 390Persons not qualified to actTreat references to acting as an insolvency practitioner as references to acting as a bank liquidator.
Section 391Recognised professional bodiesAn order under section 391 has effect in relation to any provision applied for the purposes of bank insolvency.
Sections 423–425Transactions defrauding creditorsAnything done by the bank in connection with the exercise of a stabilisation power under Part 1 of this Act is not a transaction at an undervalue for the purposes of section 423.
Sections 430 to 432and Schedule 10Offences
Section 433Statements: admissibilityFor section 433(1)(a) and (b) substitute a reference to a statement prepared for the purposes of a provision of this Part.

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