Postal Services Act 2011

Section 73

SCHEDULE 10 Conduct of postal administration

Part 1 Modifications of Schedule B1 to 1986 Act

Introductory

1 Paragraphs 1, 40 to 50, 54, 59 to 68, 70 to 75, 79, 83 to 91, 98 to 107, 109 to 111 and 112 to 116 of Schedule B1 to the 1986 Act are to have effect in relation to postal administration orders as they have effect in relation to administration orders under that Schedule, but with the modifications set out in this Part of this Schedule.

General modifications of the applicable provisions

2 Those paragraphs are to have effect as if—

(a) for “administration application”, in each place, there were substituted “postal administration application”,

(b) for “administration order”, in each place, there were substituted “postal administration order”,

(c) for “administrator”, in each place, there were substituted “postal administrator”,

(d) for “enters administration”, in each place, there were substituted “enters postal administration”,

(e) for “in administration”, in each place, there were substituted “in postal administration”, and

(f) for “purpose of administration”, in each place (other than in paragraph 111(1)), there were substituted “objective of the postal administration”.

Specific modifications

3 Paragraph 1 (administration) is to have effect as if—

(a) for sub-paragraph (1) there were substituted—

“(1) In this Schedule “postal administrator”, in relation to a company, means a person appointed by the court for the purposes of a postal administration order to manage its affairs, business and property.”, and

(b) in sub-paragraph (2), for “Act” there were substituted “Schedule”.

4 Paragraph 40 (dismissal of pending winding-up petition) is to have effect as if sub-paragraphs (1)(b), (2) and (3) were omitted.

5 Paragraph 42 (moratorium on insolvency proceedings) is to have effect as if sub-paragraphs (4) and (5) were omitted.

6 Paragraph 44 (interim moratorium) is to have effect as if sub-paragraphs (2) to (4), (6) and (7)(a) to (c) were omitted.

7 Paragraph 46(6) (date for notifying administrator’s appointment) is to have effect as if for paragraphs (a) to (c) there were substituted “the date on which the postal administration order comes into force”.

8 Paragraph 49 (administrator’s proposals) is to have effect as if—

(a) in sub-paragraph (2)(b) for “objective mentioned in paragraph 3(1)(a) or (b) cannot be achieved” there were substituted “objective of the postal administration should be achieved by means other than just a rescue of the company as a going concern”, and

(b) in sub-paragraph (4), after paragraph (a) there were inserted—

“(aa) to the Secretary of State and OFCOM,”.

9 Paragraph 54 is to have effect as if the following were substituted for it—

“54 (1) The postal administrator of a company may on one or more occasions revise the proposals included in the statement made under paragraph 49 in relation to the company.

(2) If the postal administrator thinks that a revision is substantial, the postal administrator must send a copy of the revised proposals—

(a) to the registrar of companies,

(b) to the Secretary of State and OFCOM,

(c) to every creditor of the company of whose claim and address the postal administrator is aware, and

(d) to every member of the company of whose address the postal administrator is aware.

(3) A copy sent in accordance with sub-paragraph (2) must be sent within the prescribed period.

(4) The postal administrator is to be taken to have complied with sub-paragraph (2)(d) if the postal administrator publishes, in the prescribed manner, a notice undertaking to provide a copy of the revised proposals free of charge to any member of the company who applies in writing to a specified address.

(5) The postal administrator who fails without reasonable excuse to comply with this paragraph commits an offence.”

10 Paragraph 60 (powers of an administrator) is to have effect as if the existing text were to become sub-paragraph (1) and as if after that sub-paragraph there were inserted—

“(2) The postal administrator of a company has the power to act on behalf of the company for the purposes of any enactment which confers a power on the company or imposes a duty on it.

(3) In sub-paragraph (2) “enactment” has the same meaning as in the Postal Services Act 2011 (see section 90).”

11 Paragraph 68 (management duties of an administrator) is to have effect as if—

(a) in sub-paragraph (1), for paragraphs (a) to (c) there were substituted—

“the proposals as—

(a) set out in the statement made under paragraph 49 in relation to the company, and

(b) from time to time revised under paragraph 54,

for achieving the objective of the postal administration.” and

(b) in sub-paragraph (3), for paragraphs (a) to (d) there were substituted “the directions are consistent with the achievement of the objective of the postal administration”.

12 Paragraph 71(3)(b) (charged property: non-floating charge) is to have effect as if for “market” there were substituted “the appropriate”.

13 Paragraph 72(3)(b) (hire-purchase property) is to have effect as if for “market” there were substituted “the appropriate”.

14 Paragraph 73(3) (protection for secured or preferential creditor) is to have effect as if for “or modified” there were substituted “under paragraph 54”.

15 Paragraph 74 (challenge to administrator’s conduct) is to have effect as if—

(a) for sub-paragraph (2) there were substituted—

“(2) If a company is in postal administration, a person mentioned in sub-paragraph (2A) may apply to the court claiming that the postal administrator is acting in a manner preventing the achievement of the objective of the postal administration as quickly and efficiently as is reasonably practicable.

(2A) The persons who may apply to the court are—

(a) the Secretary of State,

(b) with the consent of the Secretary of State, OFCOM,

(c) a creditor or member of the company.”,

(b) in sub-paragraph (6)—

(i) at the end of paragraph (b) there were inserted “or”, and

(ii) paragraph (c) (and the “or” before it) were omitted, and

(c) after that sub-paragraph there were inserted—

“(7) In the case of a claim made otherwise than by the Secretary of State or OFCOM, the court may grant a remedy or relief or make an order under this paragraph only if it has given the Secretary of State or OFCOM a reasonable opportunity of making representations about the claim and the proposed remedy, relief or order.

(8) The court may grant a remedy or relief or make an order on an application under this paragraph only if it is satisfied, in relation to the matters that are the subject of the application, that the postal administrator—

(a) is acting,

(b) has acted, or

(c) is proposing to act,

in a way that is inconsistent with the achievement of the objective of the postal administration as quickly and as efficiently as is reasonably practicable.

(9) Before the making of an order of the kind mentioned in sub-paragraph (4)(d)—

(a) the court must notify the postal administrator of the proposed order and of a period during which the postal administrator is to have the opportunity of taking steps falling within sub-paragraphs (10) to (12), and

(b) the period notified must have expired without the taking of such of those steps as the court thinks should have been taken,

and that period must be a reasonable period.

(10) In the case of a claim under sub-paragraph (1)(a), the steps referred to in sub-paragraph (9) are—

(a) ceasing to act in a manner that unfairly harms the interests to which the claim relates,

(b) remedying any harm unfairly caused to those interests, and

(c) steps for ensuring that there is no repetition of conduct unfairly causing harm to those interests.

(11) In the case of a claim under sub-paragraph (1)(b), the steps referred to in sub-paragraph (9) are steps for ensuring that the interests to which the claim relates are not unfairly harmed.

(12) In the case of a claim under sub-paragraph (2), the steps referred to in sub-paragraph (9) are—

(a) ceasing to act in a manner preventing the achievement of the objective of the postal administration as quickly and as efficiently as is reasonably practicable,

(b) remedying the consequences of the postal administrator having acted in such a manner, and

(c) steps for ensuring that there is no repetition of conduct preventing the achievement of the objective of the postal administration as quickly and as efficiently as is reasonably practicable.”

16 Paragraph 75(2) (misfeasance) is to have effect as if after paragraph (b) there were inserted—

“(ba) a person appointed as an administrator of the company under the provisions of this Act, as they have effect in relation to administrators other than postal administrators,”.

17 Paragraph 79 (end of administration) is to have effect as if—

(a) for sub-paragraphs (1) and (2) there were substituted—

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

(2) An application may be made to the court under this paragraph—

(a) by the Secretary of State,

(b) with the consent of the Secretary of State, by OFCOM, or

(c) with the consent of the Secretary of State, by the postal administrator.”, and

(b) sub-paragraph (3) were omitted.

18 Paragraph 83(3) (notice to registrar when moving to voluntary liquidation) is to have effect as if after “may” there were inserted “, with the consent of the Secretary of State or of OFCOM,”.

19 (1) Paragraph 84 (notice to registrar when moving to dissolution) is to have effect as if—

(a) in sub-paragraph (1), for “to the registrar of companies” there were substituted—

“(a) to the Secretary of State and OFCOM, and

(b) if directed to do so by either the Secretary of State or OFCOM, to the registrar of companies.”,

(b) sub-paragraph (2) were omitted, and

(c) in sub-paragraphs (3) to (6), for “(1)”, in each place, there were substituted “(1)(b)”.

20 Paragraph 87(2) (resignation of administrator) is to have effect as if for paragraphs (a) to (d) there were substituted “by notice in writing to the court”.

21 Paragraph 89(2) (administrator ceasing to be qualified) is to have effect as if for paragraphs (a) to (d) there were substituted “to the court”.

22 Paragraph 90 (filling vacancy in office of administrator) is to have effect as if for “Paragraphs 91 to 95 apply” there were substituted “Paragraph 91 applies”.

23 Paragraph 91 (vacancies in court appointments) is to have effect as if—

(a) for sub-paragraph (1) there were substituted—

“(1) The court may replace the postal administrator on an application made—

(a) by the Secretary of State,

(b) with the consent of the Secretary of State, by OFCOM, or

(c) where more than one person was appointed to act jointly as the postal administrator, by any of those persons who remains in office.”, and

(b) sub-paragraph (2) were omitted.

24 Paragraph 98 (discharge from liability on vacation of office) is to have effect as if sub-paragraphs (2)(b) and (3) were omitted.

25 Paragraph 99 (charges and liabilities upon vacation of office by administrator) is to have effect as if—

(a) in sub-paragraph (4), for the words from the beginning to “cessation”, in the first place, there were substituted “A sum falling within sub-paragraph (4A)”,

(b) after that sub-paragraph there were inserted—

“(4A) A sum falls within this sub-paragraph if it is—

(a) a sum payable in respect of a debt or other liability arising out of a contract that was entered into before cessation by the former postal administrator or a predecessor,

(b) a sum that must be repaid by the company in respect of a grant that was made before cessation under section 79 of the Postal Services Act 2011 as is mentioned in subsection (4) of that section,

(c) a sum that must be repaid by the company in respect of a loan made before cessation under that section or that must be paid by the company in respect of interest payable on such a loan,

(d) a sum payable by the company under subsection (5) of section 80 of that Act in respect of an agreement to indemnify made before cessation, or

(e) a sum payable by the company under subsection (5) of section 81 of that Act in respect of a guarantee given before cessation.”, and

(c) in sub-paragraph (5), for “(4)” there were substituted “(4A)(a)”.

26 Paragraph 100 (joint and concurrent administrators) is to have effect as if sub-paragraph (2) were omitted.

27 Paragraph 101(3) (joint administrators) is to have effect as if after “87 to” there were inserted “91, 98 and”.

28 Paragraph 103 (appointment of additional administrators) is to have effect as if—

(a) in sub-paragraph (2) the words from the beginning to “order” were omitted and for paragraph (a) there were substituted—

“(a) the Secretary of State,

(aa) OFCOM, or”,

(b) after that sub-paragraph there were inserted—

“(2A) The consent of the Secretary of State is required for an application by OFCOM for the purposes of sub-paragraph (2).”, and

(c) sub-paragraphs (3) to (5) were omitted.

29 Paragraph 106(2) (penalties) is to have effect as if paragraphs (a), (b), (f), (g), (i) and (l) to (n) were omitted.

30 Paragraph 109 (references to extended periods) is to have effect as if “or 108” were omitted.

31 Paragraph 111 (interpretation) is to have effect as if—

(a) in sub-paragraph (1), the definitions of “correspondence”, “holder of a qualifying floating charge”, “market value”, “the purpose of administration” and “unable to pay its debts” were omitted,

(b) in that sub-paragraph, after the definition of “administrator” (as modified as a result of paragraph 2 above) there were inserted—

• ““appropriate value” means the best price which would be reasonably available on a sale which is consistent with the achievement of the objective of the postal administration,”,

(c) in that sub-paragraph, before the definition of “creditors’ meeting” there were inserted—

• ““company” and “court” have the same meaning as in Part 4 of the Postal Services Act 2011,”,

(d) in that sub-paragraph, after the definition of “hire purchase agreement” there were inserted—

• ““objective”, in relation to a postal administration, is to be read in accordance with section 69 of the Postal Services Act 2011,

• “OFCOM” means the Office of Communications,

• “postal administration application” means an application to the court for a postal administration order under Part 4 of the Postal Services Act 2011,

• “postal administration order” has the same meaning as in Part 4 of the Postal Services Act 2011,

• “prescribed” means prescribed by postal administration rules within the meaning of Part 4 of the Postal Services Act 2011.”,

(e) sub-paragraphs (1A) and (1B) were omitted, and

(f) after sub-paragraph (3) there were inserted—

“(4) For the purposes of this Schedule a reference to a postal administration order includes a reference to an appointment under paragraph 91 or 103.”

Part 2 Further modifications of Schedule B1 to 1986 Act: foreign companies

Introductory

32 (1) This Part of this Schedule applies in the case of a postal administration order applying to a foreign company.

(2) The provisions of Schedule B1 to the 1986 Act mentioned in paragraph 1 above (as modified by Part 1 of this Schedule) have effect in relation to the company with the further modifications set out in this Part of this Schedule.

(3) The Secretary of State may by order amend this Part of this Schedule so as to add more modifications.

(4) An order under this paragraph is subject to negative resolution procedure.

33 In paragraphs 34 to 39—

(a) the provisions of Schedule B1 to the 1986 Act that are mentioned in paragraph 1 above are referred to as the applicable provisions, and

(b) references to those provisions, or to provisions comprised in them, are references to those provisions as modified by Part 1 of this Schedule.

Modifications

34 In the case of a foreign company—

(a) paragraphs 42(2), 83 and 84 of Schedule B1 to the 1986 Act do not apply,

(b) paragraphs 46(4), 49(4)(a), 54(2)(a), 71(5) and (6), 72(4) and (5) and 86 of that Schedule apply only if the company is subject to a requirement imposed by regulations under section 1043 or 1046 of the Companies Act 2006 (unregistered UK companies or overseas companies), and

(c) paragraph 61 of that Schedule does not apply.

35 (1) The applicable provisions and Schedule 1 to the 1986 Act (as applied by paragraph 60(1) of Schedule B1 to that Act) are to be read by reference to the limitation imposed on the scope of the postal administration order in question as a result of section 68(4) above.

(2) Sub-paragraph (1) has effect, in particular, so that—

(a) a power conferred, or duty imposed, on the postal administrator by or under the applicable provisions or Schedule 1 to the 1986 Act is to be read as being conferred or imposed in relation to the company’s UK affairs, business and property,

(b) references to the company’s affairs, business or property are to be read as references to its UK affairs, business and property,

(c) references to goods in the company’s possession are to be read as references to goods in its possession in the United Kingdom,

(d) references to premises let to the company are to be read as references to premises let to it in the United Kingdom, and

(e) references to legal process instituted or continued against the company or its property are to be read as references to such legal process relating to its UK affairs, business and property.

36 Paragraph 41 of Schedule B1 to the 1986 Act (dismissal of receivers) is to have effect as if—

(a) for sub-paragraph (1) there were substituted—

“(1) Where a postal administration order takes effect in respect of a company—

(a) a person appointed to perform functions equivalent to those of an administrative receiver, and

(b) if the postal administrator so requires, a person appointed to perform functions equivalent to those of a receiver,

must refrain, during the period specified in sub-paragraph (1A), from performing those functions in the United Kingdom or in relation to any of the company’s property in the United Kingdom.

(1A) That period is—

(a) in the case of a person mentioned in sub-paragraph (1)(a), the period while the company is in postal administration, and

(b) in the case of a person mentioned in sub-paragraph (1)(b), during so much of that period as is after the date on which the person is required by the postal administrator to refrain from performing functions.”, and

(b) sub-paragraphs (2) to (4) were omitted.

37 Paragraph 43(6A) of Schedule B1 to the 1986 Act (moratorium on appointment to receiverships) is to have effect as if for “An administrative receiver” there were substituted “A person with functions equivalent to those of an administrative receiver”.

38 Paragraph 44(7) of Schedule B1 to the 1986 Act (proceedings to which interim moratorium does not apply) is to have effect as if for paragraph (d) there were substituted—

“(d) the carrying out of functions by a person who (whenever appointed) has functions equivalent to those of an administrative receiver of the company.”

39 Paragraph 64 of Schedule B1 to the 1986 Act (general powers of administrator) is to have effect as if—

(a) in sub-paragraph (1), after “power” there were inserted “in relation to the affairs or business of the company so far as carried on in the United Kingdom or to its property in the United Kingdom”, and

(b) in sub-paragraph (2)(b), after “instrument” there were inserted “or by the law of the place where the company is incorporated”.

Part 3 Other modifications

General modifications

40 (1) References within sub-paragraph (2) which are contained—

(a) in the 1986 Act (other than Schedule B1 to that Act), or

(b) in other enactments passed or made before this Act,

include references to whatever corresponds to them for the purposes of this paragraph.

(2) The references are those (however expressed) which are or include references to—

(a) an administrator appointed by an administration order,

(b) an administration order,

(c) an application for an administration order,

(d) a company in administration,

(e) entering into administration, and

(f) Schedule B1 to the 1986 Act or a provision of that Schedule.

(3) For the purposes of this paragraph—

(a) a postal administrator corresponds to an administrator appointed by an administration order,

(b) a postal administration order corresponds to an administration order,

(c) an application for a postal administration order corresponds to an application for an administration order,

(d) a company in postal administration corresponds to a company in administration,

(e) entering into postal administration corresponds to entering into administration, and

(f) what corresponds to Schedule B1 to the 1986 Act or a provision of that Schedule is that Schedule or that provision as applied by Part 1 of this Schedule.

41 (1) Paragraph 40, in its application to section 1(3) of the 1986 Act, does not entitle the postal administrator of an unregistered company to make a proposal under Part 1 of the 1986 Act (company voluntary arrangements).

(2) Paragraph 40 does not confer any right under section 7(4) of the 1986 Act (implementation of voluntary arrangements) for a supervisor of voluntary arrangements to apply for a postal administration order in relation to a company which is a universal service provider.

(3) Paragraph 40 does not apply to section 359 of the Financial Services and Markets Act 2000 (administration applications by FSA).

Modifications of 1986 Act

42 The following provisions of the 1986 Act are to have effect in the case of any postal administration with the following modifications.

43 Section 5 (effect of approval of voluntary arrangements) is to have effect as if after subsection (4) there were inserted—

“(4A) Where the company is in postal administration, the court must not make an order or give a direction under subsection (3) unless—

(a) the court has given the Secretary of State or the Office of Communications 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 postal administration.

(4B) In subsection (4A) “in postal administration” and “objective of the postal administration” are to be read in accordance with Schedule B1 to this Act, as applied by Part 1 of Schedule 10 to the Postal Services Act 2011.”

44 Section 6 (challenge of decisions in relation to voluntary arrangements) is to have effect as if—

(a) in subsection (2), for “this section” there were substituted “subsection (1)”,

(b) after that subsection there were inserted—

“(2AA) Subject to this section, where a voluntary arrangement in relation to a company in postal 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 Office of Communications,

on the ground that the voluntary arrangement is not consistent with the achievement of the objective of the postal administration.”,

(c) in subsection (4), after “subsection (1)” there were inserted “or, in the case of an application under subsection (2AA), as to the ground mentioned in that subsection”, and

(d) after subsection (7) there were inserted—

“(7A) In this section “in postal administration” and “objective of the postal administration” are to be read in accordance with Schedule B1 to this Act, as applied by Part 1 of Schedule 10 to the Postal Services Act 2011.”

45 In section 129(1A) (commencement of winding up), the reference to paragraph 13(1)(e) of Schedule B1 is to include section 71(1)(e) of this Act.

Power to make further modifications

46 (1) The Secretary of State may by order amend this Part of this Schedule so as to add 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 Secretary of State considers appropriate in relation to any provision made by or under this Part of this Act.

(3) An order under this paragraph is subject to affirmative resolution procedure.

Interpretation of Part 3 of Schedule

47 In this Part of this Schedule—

• “administration order”, “administrator”, “enters administration” and “in administration” are to be read in accordance with Schedule B1 to the 1986 Act (disregarding Part 1 of this Schedule), and

• “enters postal administration” and “in postal administration” are to be read in accordance with Schedule B1 to the 1986 Act (as applied by Part 1 of this Schedule).