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Companies Act 1989

1989 CHAPTER 40

An Act to amend the law relating to company accounts; to make new provision with respect to the persons eligible for appointment as company auditors; to amend the Companies Act 1985 and certain other enactments with respect to investigations and powers to obtain information and to confer new powers exercisable to assist overseas regulatory authorities; to make new provision with respect to the registration of company charges and otherwise to amend the law relating to companies; to amend the Fair Trading Act 1973; to enable provision to be made for the payment of fees in connection with the exercise by the Secretary of State, the Director General of Fair Trading and the Monopolies and Mergers Commission of their functions under Part V of that Act; to make provision for safeguarding the operation of certain financial markets; to amend the Financial Services Act 1986; to enable provision to be made for the recording and transfer of title to securities without a written instrument; to amend the Company Directors Disqualification Act 1986, the Company Securities (Insider Dealing) Act 1985, the Policyholders Protection Act 1975 and the law relating to building societies; and for connected purposes.

[16th November 1989]

Be it enacted by the Queen’s most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:—

Extent Information

E1Act extends to Great Britain, but for exceptions see s. 213.

Modifications etc. (not altering text)

Part IU.K. Company Accounts

IntroductionU.K.

1 Introduction.U.K.

F1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

Provisions applying to companies generallyU.K.

2 Accounting records.U.K.

F2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

3 A company’s financial year and accounting reference periods.U.K.

F3. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

4 Individual company accounts.U.K.

F4. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

5 Group accounts.U.K.

F5. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

6 Additional disclosure required in notes to accounts.U.K.

F6. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

7 Approval and signing of accounts.U.K.

F7. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

8 Directors’ report.U.K.

F8. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

9 Auditors’ report.U.K.

F9. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

10 Publication of accounts and reports.U.K.

F10. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

11 Laying and delivering of accounts and reports.U.K.

F11. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

12 Remedies for failure to comply with accounting requirements.U.K.

F12. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Exemptions and special provisionsU.K.

13 Small and medium-sized companies and groups.U.K.

F13. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

14 Dormant companies.U.K.

F14. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

15 Public listed companies: provision of summary financial statement.U.K.

F15. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

16 Private companies: election to dispense with laying of accounts and reports before general meeting.U.K.

F16. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

17 Unlimited companies: exemption from requirement to deliver accounts and reports.U.K.

F17. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

18 Banking and insurance companies and groups: special provisions.U.K.

F18. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Supplementary provisionsU.K.

19 Accounting standards.E+W+S

F19. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

20 Power to alter accounting requirements.U.K.

F20. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

21 Parent and subsidiary undertakings.U.K.

F21. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

22 Other interpretation provisions.U.K.

F22. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Consequential amendmentsU.K.

23 Consequential amendments.U.K.

The enactments specified in Schedule 10 have effect with the amendments specified there, which are consequential on the amendments made by the preceding provisions of this Part.

Part IIU.K. Eligibility for Appointment as Company Auditor

Modifications etc. (not altering text)

C4Pt. II (ss. 24-54) applied (with modifications) (E.W.S.) (20.10.1993) by 1993 c. xi, ss. 1(2), 6(4)

Pt. II (ss. 24-54) applied (with modifications) (E.W.S.) (21.7.1993) by S.I. 1993/1820, reg. 4, Sch. para.3

Pt. II (ss. 24-54) applied (with modifications) (E.W.S.) (19.12.1993) by S.I. 1993/3245, reg.3(5)

Pt. II (ss. 24-54) applied (with modifications) (E.W.S.) (28.5.1994) by S.I. 1994/1440, art. 37(1)(2) (with arts. 38, 39)

Pt. 2 (ss. 24-54) applied (with modifications) (31.12.2004) by The Insurance Accounts Directive (Lloyd's Syndicate and Aggregate Accounts) Regulations 2004 (S.I. 2004/3219), regs. {3(6)}, {4(5)}

C7Pt. 2 (ss. 24-54): functions of the Secretary of State transferred to the designated body (E.W.S) (5.9.2005) by The Companies Act 1989 (Delegation) Order 2005 (S.I. 2005/2337), art. 3 (with arts. 7-10)

IntroductionE+W+S

24Introduction.E+W+S

F23. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Eligibility for appointmentE+W+S

25 Eligibility for appointment.E+W+S

F24. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

26 Effect of appointment of partnership.E+W+S

F25. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

27 Ineligibility on ground of lack of independence.E+W+S

F26. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

28 Effect of ineligibility.E+W+S

F27. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

29 Power of Secretary of State to require second audit.E+W+S

F28. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Recognition of supervisory bodies and professional qualificationsU.K.

30 Supervisory bodies.E+W+S

F29. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

31 Meaning of “appropriate qualification”.E+W+S

F30. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

32 Qualifying bodies and recognised professional qualifications.E+W+S

F31. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

33 Approval of overseas qualifications.E+W+S

F32. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

34 Eligibility of individuals retaining only 1967 Act authorisation.E+W+S

F33. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Duties of recognised bodiesE+W+S

35 The register of auditors.E+W+S

F34. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

36 Information about firms to be available to public.E+W+S

F35. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

37 Matters to be notified to the Secretary of State.E+W+S

F36. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

38 Power to call for information.E+W+S

F37. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

39 Compliance orders.E+W+S

F38. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

40 Directions to comply with international obligations.E+W+S

F39. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

OffencesE+W+S

41 False and misleading statements.E+W+S

F40. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

42 Offences by bodies corporate, partnerships and unincorporated associations.E+W+S

F41. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

43 Time limits for prosecution of offences.E+W+S

F42. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

44 Jurisdiction and procedure in respect of offences.E+W+S

F43. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Supplementary provisionsE+W+S

45 Fees.E+W+S

F44. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

46 Delegation of functions of Secretary of State.E+W+S

F45. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F4646ACircumstances in which Secretary of State may delegate functions to existing bodyE+W+S

F47. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .]

47 Restrictive practices.E+W+S

F48. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

48 Exemption from liability for damages.E+W+S

F49. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

49 Service of notices.E+W+S

F50. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

50 Power to make consequential amendments.E+W+S

F51. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

51 Power to make provision in consequence of changes affecting accountancy bodies.E+W+S

F52. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

52 Meaning of “associate”.E+W+S

F53. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

53 Minor definitions.E+W+S

F54. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

54 Index of defined expressions.E+W+S

F55. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Part IIIU.K. Investigations and Powers to Obtain Information

Amendments of the Companies Act 1985U.K.

55 Investigations by inspectors not leading to published report.U.K.

In section 432 of the M1Companies Act 1985 (appointment of inspectors by Secretary of State), after subsection (2) (investigation of circumstances suggesting misconduct) insert—

(2A)Inspectors may be appointed under subsection (2) on terms that any report they may make is not for publication; and in such a case, the provisions of section 437(3) (availability and publication of inspectors’ reports) do not apply..

Marginal Citations

56 Production of documents and evidence to inspectors.U.K.

(1)Section 434 of the Companies Act 1985 (production of documents and evidence to inspectors) is amended as follows.

(2)In subsection (1) (duty of officers to assist inspectors), for “books and documents” substitute “documents”.

(3)For subsection (2)(power to require production of documents, attendance or other assistance) substitute—

(2)If the inspectors consider that an officer or agent of the company or other body corporate, or any other person, is or may be in possession of information relating to a matter which they believe to be relevant to the investigation, they may require him—

(a)to produce to them any documents in his custody or power relating to that matter,

(b)to attend before them, and

(c)otherwise to give them all assistance in connection with the investigation which he is reasonably able to give;

and it is that person’s duty to comply with the requirement..

(4)For subsection (3) (power to examine on oath) substitute—

(3)An inspector may for the purposes of the investigation examine any person on oath, and may administer an oath accordingly..

(5)After subsection (5) insert—

(6)In this section “documents” includes information recorded in any form; and, in relation to information recorded otherwise than in legible form, the power to require its production includes power to require the production of a copy of the information in legible form..

(6)In section 436 of the M2Companies Act 1985 (obstruction of inspectors treated as contempt of court), for subsections (1) and (2) substitute—

(1)If any person—

(a)fails to comply with section 434(1)(a) or (c),

(b)refuses to comply with a requirement under section 434(1)(b) or (2), or

(c)refuses to answer any question put to him by the inspectors for the purposes of the investigation,

the inspectors may certify that fact in writing to the court..

Marginal Citations

57 Duty of inspectors to report.U.K.

In section 437 of the Companies Act 1985 (inspectors’ reports), after subsection (1A) insert—

(1B)If it appears to the Secretary of State that matters have come to light in the course of the inspectors’ investigation which suggest that a criminal offence has been committed, and those matters have been referred to the appropriate prosecuting authority, he may direct the inspectors to take no further steps in the investigation or to take only such further steps as are specified in the direction.

(1C)Where an investigation is the subject of a direction under subsection (1B), the inspectors shall make a final report to the Secretary of State only where—

(a)they were appointed under section 432(1) (appointment in pursuance of an order of the court), or

(b)the Secretary of State directs them to do so..

58 Power to bring civil proceedings on the company’s behalf.U.K.

F56. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

59 Expenses of investigating a company’s affairs.U.K.

(1)Section 439 of the Companies Act 1985 (expenses of investigating a company’s affairs) is amended as follows.

(2)For subsection (1) substitute—

(1)The expenses of an investigation under any of the powers conferred by this Part shall be defrayed in the first instance by the Secretary of State, but he may recover those expenses from the persons liable in accordance with this section.

There shall be treated as expenses of the investigation, in particular, such reasonable sums as the Secretary of State may determine in respect of general staff costs and overheads..

(3)In subsection (4) for “the inspectors’ report” substitute “ an inspectors’ report ”.

(4)For subsection (5) substitute—

(5)Where inspectors were appointed—

(a)under section 431, or

(b)on an application under section 442(3),

the applicant or applicants for the investigation is or are liable to such extent (if any) as the Secretary of State may direct..

60 Power of Secretary of State to present winding-up petition.U.K.

(1)Section 440 of the M3Companies Act 1985 (power of Secretary of State to present winding-up petition) is repealed; but the following amendments have the effect of re-enacting that provision, with modifications.

(2)In section 124(4) of the M4Insolvency Act 1986 (application by Secretary of State for company to be wound up by the court), for paragraph (b) substitute—

(b)in a case falling within section 124A below..

(3)After that section insert—

124A Petition for winding up on grounds of public interest.

(1)Where it appears to the Secretary of State from—

(a)any report made or information obtained under Part XIV of the Companies Act 1985 (company investigations, &c.),

(b)any report made under section 94 or 177 of the Financial Services Act 1986 or any information obtained under section 105 of that Act,

(c)any information obtained under section 2 of the Criminal Justice Act 1987 or section 52 of the Criminal Justice (Scotland) Act 1987 (fraud investigations), or

(d)any information obtained under section 83 of the Companies Act 1989 (powers exercisable for purpose of assisting overseas regulatory authorities),

that it is expedient in the public interest that a company should be wound up, he may present a petition for it to be wound up if the court thinks it just and equitable for it to be so.

(2)This section does not apply if the company is already being wound up by the court..

Marginal Citations

61 Inspectors’ reports as evidence.U.K.

In section 441 of the Companies Act 1985 (inspectors’ reports to be evidence), in subsection (1) for “sections 431 or 432” substitute “ this Part ”.

62 Investigation of company ownership.U.K.

In section 442 of the Companies Act 1985 (power to investigate company ownership), for subsection (3) (investigation on application by members of company) substitute—

(3)If an application for investigation under this section with respect to particular shares or debentures of a company is made to the Secretary of State by members of the company, and the number of applicants or the amount of shares held by them is not less than that required for an application for the appointment of inspectors under section 431(2)(a) or (b), then, subject to the following provisions, the Secretary of State shall appoint inspectors to conduct the investigation applied for.

(3A)The Secretary of State shall not appoint inspectors if he is satisfied that the application is vexatious; and where inspectors are appointed their terms of appointment shall exclude any matter in so far as the Secretary of State is satisfied that it is unreasonable for it to be investigated.

(3B)The Secretary of State may, before appointing inspectors, require the applicant or applicants to give security, to an amount not exceeding £5,000, or such other sum as he may by order specify, for payment of the costs of the investigation.

An order under this subsection shall be made by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament.

(3C)If on an application under subsection (3) it appears to the Secretary of State that the powers conferred by section 444 are sufficient for the purposes of investigating the matters which inspectors would be appointed to investigate, he may instead conduct the investigation under that section..

63 Secretary of State’s power to require production of documents.U.K.

F57. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

64 Entry and search of premises.U.K.

(1)For section 448 of the Companies Act 1985 (entry and search of premises) substitute—

448 Entry and search of premises.

(1)A justice of the peace may issue a warrant under this section if satisfied on information on oath given by or on behalf of the Secretary of State, or by a person appointed or authorised to exercise powers under this Part, that there are reasonable grounds for believing that there are on any premises documents whose production has been required under this Part and which have not been produced in compliance with the requirement.

(2)A justice of the peace may also issue a warrant under this section if satisfied on information on oath given by or on behalf of the Secretary of State, or by a person appointed or authorised to exercise powers under this Part—

(a)that there are reasonable grounds for believing that an offence has been committed for which the penalty on conviction on indictment is imprisonment for a term of not less than two years and that there are on any premises documents relating to whether the offence has been committed,

(b)that the Secretary of State, or the person so appointed or authorised, has power to require the production of the documents under this Part, and

(c)that there are reasonable grounds for believing that if production was so required the documents would not be produced but would be removed from the premises, hidden, tampered with or destroyed.

(3)A warrant under this section shall authorise a constable, together with any other person named in it and any other constables—

(a)to enter the premises specified in the information, using such force as is reasonably necessary for the purpose;

(b)to search the premises and take possession of any documents appearing to be such documents as are mentioned in subsection (1) or (2), as the case may be, or to take, in relation to any such documents, any other steps which may appear to be necessary for preserving them or preventing interference with them;

(c)to take copies of any such documents; and

(d)to require any person named in the warrant to provide an explanation of them or to state where they may be found.

(4)If in the case of a warrant under subsection (2) the justice of the peace is satisfied on information on oath that there are reasonable grounds for believing that there are also on the premises other documents relevant to the investigation, the warrant shall also authorise the actions mentioned in subsection (3) to be taken in relation to such documents.

(5)A warrant under this section shall continue in force until the end of the period of one month beginning with the day on which it is issued.

(6)Any documents of which possession is taken under this section may be retained—

(a)for a period of three months; or

(b)if within that period proceedings to which the documents are relevant are commenced against any person for any criminal offence, until the conclusion of those proceedings.

(7)Any person who intentionally obstructs the exercise of any rights conferred by a warrant issued under this section or fails without reasonable excuse to comply with any requirement imposed in accordance with subsection (3)(d) is guilty of an offence and liable to a fine.

Sections 732 (restriction on prosecutions), 733 (liability of individuals for corporate default) and 734 (criminal proceedings against unincorporated bodies) apply to this offence.

(8)For the purposes of sections 449 and 451A (provision for security of information) documents obtained under this section shall be treated as if they had been obtained under the provision of this Part under which their production was or, as the case may be, could have been required.

(9)In the application of this section to Scotland for the references to a justice of the peace substitute references to a justice of the peace or a sheriff, and for the references to information on oath substitute references to evidence on oath.

(10)In this section “document” includes information recorded in any form..

(2)In Schedule 24 to the M5Companies Act 1985 (punishment of offences), in the entry relating to section 448(5)—

(a)in the first column for “448(5)” substitute “448(7)”, and

(b)for the entry in the second column substitute—

Obstructing the exercise of any rights conferred by a warrant or failing to comply with a requirement imposed under subsection (3)(d)..

Marginal Citations

65 Provision for security of information obtained.U.K.

F58. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

66 Punishment for destroying, mutilating, &c. company documents.U.K.

(1)Section 450 of the M6Companies Act 1985 (punishment for destroying, mutilating, &c. company documents) is amended as follows.

(2)In subsection (1) for the opening words down to “insurance company” substitute “An officer of a company, or of an insurance company”, for “body’s” substitute “company’s” and for “the body” substitute “the company”.

(3)For subsection (4) substitute—

(4)Sections 732 (restriction on prosecutions), 733 (liability of individuals for corporate default) and 734 (criminal proceedings against unincorporated bodies) apply to an offence under this section..

(4)After that subsection insert—

(5)In this section “document” includes information recorded in any form..

Marginal Citations

67 Punishment for furnishing false information.U.K.

F59. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

68 Disclosure of information by Secretary of State or inspector.U.K.

For section 451A of the Companies Act 1985 (disclosure of information by the Secretary of State) substitute—

451A Disclosure of information by Secretary of State or inspector.

(1)This section applies to information obtained under sections 434 to 446.

(2)The Secretary of State may, if he thinks fit—

(a)disclose any information to which this section applies to any person to whom, or for any purpose for which, disclosure is permitted under section 449, or

(b)authorise or require an inspector appointed under this Part to disclose such information to any such person or for any such purpose.

(3)Information to which this section applies may also be disclosed by an inspector appointed under this Part to—

(a)another inspector appointed under this Part or an inspector appointed under section 94 or 177 of the Financial Services Act 1986, or

(b)a person authorised to exercise powers under section 44 of the Insurance Companies Act 1982, section 447 of this Act, section 106 of the Financial Services Act 1986 or section 84 of the Companies Act 1989.

(4)Any information which may by virtue of subsection (3) be disclosed to any person may be disclosed to any officer or servant of that person.

(5)The Secretary of State may, if he thinks fit, disclose any information obtained under section 444 to—

(a)the company whose ownership was the subject of the investigation,

(b)any member of the company,

(c)any person whose conduct was investigated in the course of the investigation,

(d)the auditors of the company, or

(e)any person whose financial interests appear to the Secretary of State to be affected by matters covered by the investigation..

69 Protection of banking information.U.K.

(1)Section 452 of the M7Companies Act 1985 (privileged information) is amended as follows.

(2)F60. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(3)After that subsection insert—

(1A)Nothing in section 434, 443 or 446 requires a person (except as mentioned in subsection (1B) below) to disclose information or produce documents in respect of which he owes an obligation of confidence by virtue of carrying on the business of banking unless—

(a)the person to whom the obligation of confidence is owed is the company or other body corporate under investigation,

(b)the person to whom the obligation of confidence is owed consents to the disclosure or production, or

(c)the making of the requirement is authorised by the Secretary of State.

(1B)Subsection (1A) does not apply where the person owing the obligation of confidence is the company or other body corporate under investigation under section 431, 432 or 433..

(4)F60. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

Marginal Citations

70 Investigation of oversea companies.U.K.

In section 453 of the Companies Act 1985 (investigation of oversea companies), for subsection (1) substitute—

(1)The provisions of this Part apply to bodies corporate incorporated outside Great Britain which are carrying on business in Great Britain, or have at any time carried on business there, as they apply to companies under this Act; but subject to the following exceptions, adaptations and modifications.

(1A)The following provisions do not apply to such bodies—

(a)section 431 (investigation on application of company or its members),

(b)section 438 (power to bring civil proceedings on the company’s behalf),

(c)sections 442 to 445 (investigation of company ownership and power to obtain information as to those interested in shares, &c.), and

(d)section 446 (investigation of share dealings).

(1B)The other provisions of this Part apply to such bodies subject to such adaptations and modifications as may be specified by regulations made by the Secretary of State..

71 Investigation of unregistered companies.U.K.

In Schedule 22 to the Companies Act 1985 (provisions applying to unregistered companies), for the entry relating to Part XIV substitute—

Part XIV (except section 446)

Investigation of companies and their affairs; requisition of documents.

.

Amendments of the Financial Services Act 1986U.K.

F6172. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .U.K.

Textual Amendments

F61Ss. 72-77 repealed (1.12.2001) by S.I. 2001/3649, arts. 1, 75(a)

F6273. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .U.K.

Textual Amendments

F62Ss. 72-77 repealed (1.12.2001) by S.I. 2001/3649, arts. 1, 75(a)

F6374. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .U.K.

Textual Amendments

F63Ss. 72-77 repealed (1.12.2001) by S.I. 2001/3649, arts. 1, 75(a)

F6475. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .U.K.

Textual Amendments

F64Ss. 72-77 repealed (1.12.2001) by S.I. 2001/3649, arts. 1, 75(a)

F6576. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .U.K.

Textual Amendments

F65Ss. 72-77 repealed (1.12.2001) by S.I. 2001/3649, arts. 1, 75(a)

Amendments of other enactmentsU.K.

F6677. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .U.K.

Textual Amendments

F66Ss. 72-77 repealed (1.12.2001) by S.I. 2001/3649, arts. 1, 75(a)

F6778. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .E+W+S

Textual Amendments

F6879. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .U.K.

Textual Amendments

F68S. 79 repealed (1.12.2001) by S.I. 2001/3649, arts. 1, 75(b)

80 Amendment of the Building Societies Act 1986.U.K.

In section 53 of the M8Building Societies Act 1986 (confidentiality of information obtained by the Building Societies Commission), in subsection (7)(b) (functions of Secretary of State for purposes of which disclosure may be made) after sub-paragraph (ii) insert—

, or

(iii)Part II, III or VII of the Companies Act 1989;.

Commencement Information

I1S. 80 wholly in force at 25.4.1991 see s. 215 and S.I. 1990/142 and 1991/878, art. 2, Sch.

Marginal Citations

F6981. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .U.K.

Textual Amendments

F69S. 81 repealed (1.12.2001) by S.I. 2001/3649, arts. 1, 75(c)

Powers exercisable to assist overseas regulatory authoritiesU.K.

82 Request for assistance by overseas regulatory authority.U.K.

(1)The powers conferred by section 83 are exercisable by the Secretary of State for the purpose of assisting an overseas regulatory authority which has requested his assistance in connection with inquiries being carried out by it or on its behalf.

(2)An “overseas regulatory authority” means an authority which in a country or territory outside the United Kingdom exercises—

[F70(a)any function corresponding to—

(i)any function of the Secretary of State under the Companies Act 1985 [F71or the Companies Act 2006];

(ii)any function of the [F72FCA, the PRA or the Bank of England] under the Financial Services and Markets Act 2000;

F73(iii). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .]

(b)any function in connection with the investigation of, or the enforcement of rules (whether or not having the force of law) relating to, conduct of the kind prohibited by [F74Part V of the Criminal Justice Act 1993 (insider dealing)], or

(c)any function prescribed for the purposes of this subsection by order of the Secretary of State, being a function which in the opinion of the Secretary of State relates to companies or financial services.

An order under paragraph (c) shall be made by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament.

(3)The Secretary of State shall not exercise the powers conferred by section 83 unless [F75he and the [F76corresponding UK regulator (if any)] are] satisfied that the assistance requested by the overseas regulatory authority is for the purposes of its regulatory functions.

An authority’s “regulatory functions” means any functions falling within subsection (2) and any other functions relating to companies or financial services.

[F77(3A)In subsection (3), “the corresponding UK regulator” means such one or more of the FCA, PRA and the Bank of England as appears to the Secretary of State to exercise functions corresponding to the regulatory functions for the purposes of which the request is made.]

(4)In deciding whether to exercise those powers the Secretary of State may take into account, in particular—

(a)whether corresponding assistance would be given in that country or territory to an authority exercising regulatory functions in the United Kingdom;

(b)whether the inquiries relate to the possible breach of a law, or other requirement, which has no close parallel in the United Kingdom or involves the assertion of a jurisdiction not recognised by the United Kingdom;

(c)the seriousness of the matter to which the inquiries relate, the importance to the inquiries of the information sought in the United Kingdom and whether the assistance could be obtained by other means;

(d)whether it is otherwise appropriate in the public interest to give the assistance sought.

(5)Before deciding whether to exercise those powers in a case where the overseas regulatory authority is a banking supervisor, the Secretary of State shall consult the [F78FCA and the PRA].

A “banking supervisor” means an overseas regulatory authority with respect to which the [F79FCA or the PRA] has notified the Secretary of State, for the purposes of this subsection, that it exercises functions corresponding to those of [F80the body giving the notification] [F81in relation to authorised persons with permission under the Financial Services and Markets Act 2000 to accept deposits].

[F82(5A)In subsection (5), “authorised person” has the meaning given in the Financial Services and Markets Act 2000 and the references to deposits and their acceptance must be read with—

(a)section 22 of that Act;

(b)any relevant order under that section; and

(c)Schedule 2 to that Act.]

(6)The Secretary of State may decline to exercise those powers unless the overseas regulatory authority undertakes to make such contribution towards the costs of their exercise as the Secretary of State considers appropriate.

(7)References in this section to financial services include, in particular, investment business, insurance and banking.

Textual Amendments

F70S. 82(2)(a) substituted (1.12.2001) by S.I. 2001/3649, arts. 1, 76(2)

F72Words in s. 82(2)(a)(ii) substituted (1.4.2013) by Financial Services Act 2012 (c. 21), s. 122(3), Sch. 18 para. 63(2)(a) (with Sch. 20); S.I. 2013/423, art. 3, Sch.

F73S. 82(2)(a)(iii) omitted (1.4.2013) by virtue of Financial Services Act 2012 (c. 21), s. 122(3), Sch. 18 para. 63(2)(b) (with Sch. 20); S.I. 2013/423, art. 3, Sch.

F74Words in s. 82(2)(b) substituted (1.3.1994) by 1993 c. 36, s. 79(13), Sch. 5 Pt. I para. 16; S.I. 1994/242, art. 2, Sch.

F75Words in s. 82(3) substituted (1.12.2001) by S.I. 2001/3649, arts. 1, 76(3)

F81Words in the definition of “banking supervisor” in s. 82(5) substituted (1.12.2001) by S.I. 2001/3649, arts. 1, 76(4)

F82S. 82(5A) inserted (1.12.2001) by S.I. 2001/3649, arts. 1, 76(5)

Modifications etc. (not altering text)

C8S. 82(3): (7.6.1992) certain functions made exercisable concurrently by the Secretary of State and the Treasury by S.I. 1992/1315, arts. 5, 8, Sch. 3 para. 3 (with art. 6).

83 Power to require information, documents or other assistance.U.K.

(1)The following powers may be exercised in accordance with section 82, if the Secretary of State considers there is good reason for their exercise.

(2)The Secretary of State may require any person—

(a)to attend before him at a specified time and place and answer questions or otherwise furnish information with respect to any matter relevant to the inquiries,

(b)to produce at a specified time and place any specified documents which appear to the Secretary of State to relate to any matter relevant to the inquiries, and

(c)otherwise to give him such assistance in connection with the inquiries as he is reasonably able to give.

(3)The Secretary of State may examine a person on oath and may administer an oath accordingly.

(4)Where documents are produced the Secretary of State may take copies or extracts from them.

(5)A person shall not under this section be required to disclose information or produce a document which he would be entitled to refuse to disclose or produce on grounds of legal professional privilege in proceedings in the High Court or on grounds of confidentiality as between client and professional legal adviser in proceedings in the Court of Session, except that a lawyer may be required to furnish the name and address of his client.

(6)A statement by a person in compliance with a requirement imposed under this section may be used in evidence against him.

[F83(6A)However, in criminal proceedings in which that person is charged with an offence to which this subsection applies—

(a)no evidence relating to the statement may be adduced, and

(b)no question relating to it may be asked,

by or on behalf of the prosecution, unless evidence relating to it is adduced, or a question relating to it is asked, in the proceedings by or on behalf of that person.

(6B)Subsection (6A) applies to any offence other than—

(a)an offence under section 85;

(b)an offence under section 2 or 5 of the M9Perjury Act 1911 (false statements made on oath otherwise than in judicial proceedings or made otherwise than on oath);

(c)an offence under section 44(1) or (2) of the M10Criminal Law (Consolidation) (Scotland) Act 1995 (false statements made on oath or otherwise than on oath); or

(d)an offence under Article 7 or 10 of the M11Perjury (Northern Ireland) Order 1979 (false statements made on oath otherwise than in judicial proceedings or made otherwise than on oath).]

(7)Where a person claims a lien on a document, its production under this section is without prejudice to his lien.

(8)In this section “documents” includes information recorded in any form; and, in relation to information recorded otherwise than in legible form, the power to require its production includes power to require the production of a copy of it in legible form.

Textual Amendments

F83S. 83(6A)(6B) inserted (14.4.2000 for E.W., N.I. and 1.1.2001 for S.) by 1999 c. 23, s. 59, Sch. 3 para.21 (with s. 63(2), Sch. 7 paras. 3(3), 5(2)); S.I. 2000/1034, arts. 2(a), 3(2); S.S.I. 2000/445, art. 2

Marginal Citations

84 Exercise of powers by officer, &c.U.K.

(1)The Secretary of State may authorise an officer of his or any other competent person to exercise on his behalf all or any of the powers conferred by section 83.

(2)No such authority shall be granted except for the purpose of investigating—

(a)the affairs, or any aspects of the affairs, of a person specified in the authority, or

(b)a subject-matter so specified,

being a person who, or subject-matter which, is the subject of the inquiries being carried out by or on behalf of the overseas regulatory authority.

(3)No person shall be bound to comply with a requirement imposed by a person exercising powers by virtue of an authority granted under this section unless he has, if required, produced evidence of his authority.

(4)A person shall not by virtue of an authority under this section be required to disclose any information or produce any documents in respect of which he owes an obligation of confidence by virtue of carrying on the business of banking unless—

(a)the imposing on him of a requirement with respect to such information or documents has been specifically authorised by the Secretary of State, or

(b)the person to whom the obligation of confidence is owed consents to the disclosure or production.

In this subsection “documents” has the same meaning as in section 83.

(5)Where the Secretary of State authorises a person other than one of his officers to exercise any powers by virtue of this section, that person shall make a report to the Secretary of State in such manner as he may require on the exercise of those powers and the results of exercising them.

85 Penalty for failure to comply with requirement, &c.U.K.

(1)A person who without reasonable excuse fails to comply with a requirement imposed on him under section 83 commits an offence and is liable on summary conviction to imprisonment for a term not exceeding six months or to a fine not exceeding level 5 on the standard scale, or both.

(2)A person who in purported compliance with any such requirement furnishes information which he knows to be false or misleading in a material particular, or recklessly furnishes information which is false or misleading in a material particular, commits an offence and is liable—

(a)on conviction on indictment, to imprisonment for a term not exceeding two years or to a fine, or both;

(b)on summary conviction, to imprisonment for a term not exceeding six months or to a fine not exceeding the statutory maximum, or both.

86 Restrictions on disclosure of information.U.K.

(1)This section applies to information relating to the business or other affairs of a person which—

(a)is supplied by an overseas regulatory authority in connection with a request for assistance, or

(b)is obtained by virtue of the powers conferred by section 83, whether or not any requirement to supply it is made under that section.

(2)Except as permitted by section 87 below, such information shall not be disclosed for any purpose—

(a)by the primary recipient, or

(b)by any person obtaining the information directly or indirectly from him,

without the consent of the person from whom the primary recipient obtained the information and, if different, the person to whom it relates.

(3)The “primary recipient” means, as the case may be—

(a)the Secretary of State,

(b)any person authorised under section 84 to exercise powers on his behalf, and

(c)any officer or servant of any such person.

(4)Information shall not be treated as information to which this section applies if it has been made available to the public by virtue of being disclosed in any circumstances in which, or for any purpose for which, disclosure is not precluded by this section.

(5)A person who contravenes this section commits an offence and is liable—

(a)on conviction on indictment, to imprisonment for a term not exceeding two years or to a fine, or both;

(b)on summary conviction, to imprisonment for a term not exceeding three months or to a fine not exceeding the statutory maximum, or both.

87 Exceptions from restrictions on disclosure.U.K.

(1)Information to which section 86 applies may be disclosed—

(a)to any person with a view to the institution of, or otherwise for the purposes of, relevant proceedings,

(b)for the purpose of enabling or assisting a relevant authority to discharge any relevant function (including functions in relation to proceedings),

(c)to the Treasury, if the disclosure is made in the interests of investors or in the public interest,

(d)if the information is or has been available to the public from other sources,

(e)in a summary or collection of information framed in such a way as not to enable the identity of any person to whom the information relates to be ascertained, or

(f)in pursuance of any [F84EU] obligation.

(2)The relevant proceedings referred to in subsection (1)(a) are—

(a)any criminal proceedings,

[F85(b)civil proceedings arising under or by virtue of the Financial Services and Markets Act 2000 and proceedings before the Upper Tribunal in respect of—

[F86(i)a decision of the FCA;

(ia)a decision of the PRA;]

(ii)a decision of the Bank of England; or

(iii)a decision of a person relating to the assessment of any compensation or consideration under the Banking (Special Provisions) Act 2008 or the Banking Act 2009,]

(c)disciplinary proceedings relating to—

(i)the exercise by a [F87relevant lawyer], auditor, accountant, valuer or actuary of his professional duties, or

(ii)the discharge by a public servant of his duties.

[F88(d)proceedings before [F89the Pensions Regulator Tribunal][F89a tribunal in relation to a decision of the Pensions Regulator].]

[F90(2A)In subsection (2)(c)(i) “relevant lawyer” means—

(a)a person who, for the purposes of the Legal Services Act 2007, is an authorised person in relation to an activity which constitutes a reserved legal activity (within the meaning of that Act),

(b)a solicitor or barrister in Northern Ireland, or

(c)a solicitor or advocate in Scotland.]

(3)In subsection (2)(c)(ii) “public servant” means an officer or servant of the Crown or of any public or other authority for the time being designated for the purposes of that provision by order of the Secretary of State.

(4)The relevant authorities referred to in subsection (1)(b), and the relevant functions in relation to each such authority, are as follows—

AuthorityFunctions
[F91The Secretary of State

Functions under—

(a)the enactments relating to companies or insolvency;

(b)Part 2, this Part or Part 7 of this Act;

(c)the Financial Services and Markets Act 2000.]

[F92The Treasury.

Functions under—

(a)this Part or Part 7 of this Act;

(b)the Financial Services and Markets Act 2000.]

[F93An inspector appointed under Part 14 of the Companies Act 1985.Functions under that Part.]
[F94A person authorised to exercise powers under section 447 of the Companies Act 1985 or section 84 of this Act.Functions under that section.]

[F94A person appointed under—

(a)section 167 of the Financial Services and Markets Act 2000 (general investigations),

(b)section 168 of that Act (investigations in particular cases),

(c)section 169(1)(b) of that Act (investigation in support of overseas regulator),

(d)section 284 of that Act (investigations into affairs of certain collective investment schemes), or

(e)regulations made as a result of section 262(2)(k) of that Act (investigations into open-ended investment companies),to conduct an investigation.

Functions in relation to the investigation.]
An overseas regulatory authority.Its regulatory functions (within the meaning of section 82 of this Act).
The Department of Economic Development in Northern Ireland or a person appointed or authorised by that Department.Functions conferred on it or him by the enactments relating to companies or insolvency.
F95. . .F95. . .
F95. . .F95. . .
F95. . .F95. . .
F95. . .F95. . .
F95. . .F95. . .
F95. . .F95. . .
The Bank of England.[F96Any of its functions]
[F97[F98The FCA or the PRA].Functions under the enactments relating to friendly societies, under the Building Societies Act 1986 and under the Financial Services and Markets Act 2000.]
[F99A body corporate established in accordance with section 212(1) of that Act.Functions under the Financial Services Compensation Scheme, established in accordance with section 213 of that Act.
A recognised investment exchange[F100, recognised clearing house or recognised CSD] (as defined by section 285 of that Act).Functions in its capacity as an exchange [F101clearing house or central securities depository] recognised under that Act.
A body designated under section 326(1) of the Financial Services and Markets Act 2000.Functions in its capacity as a body designated under that section.]
F95. . .F95. . .
[F102A body designated by order under section 1252 of the Companies Act 2006.][F102Functions under Part 42 of the Companies Act 2006.]
[F103A recognised supervisory or qualifying body within the meaning of Part 42 of the Companies Act 2006.][F103Functions as such a body.]
F95. . .F95. . .
F104. . .F104. . .
The Official Receiver or, in Northern Ireland, the Official Assignee for company liquidations or for bankruptcy.Functions under the enactments relating to insolvency.
A recognised professional body (within the meaning of section 391 of the Insolvency Act 1986).Functions in its capacity as such a body under the M12Insolvency Act 1986.
F95. . .F95. . .
[F105The Pensions Regulator

Functions conferred by or by virtue of—

(a)

the Pension Schemes Act 1993,

(b)

the Pensions Act 1995,

(c)

the Welfare Reform and Pensions Act 1999,

(d)

the Pensions Act 2004,

or any enactment in force in Northern Ireland corresponding to an enactment mentioned in paragraphs (a) to (d) above.

The Board of the Pension Protection FundFunctions conferred by or by virtue of Part 2 of the Pensions Act 2004 or any enactment in force in Northern Ireland corresponding to that Part.]
[F106The Competition and Markets Authority]Functions under the [F107Financial Services and Markets Act 2000].
[F108A person authorised by the Secretary of State under sections 245C of the Companies Act 1985.][F108Functions relating to the securing of compliance by companies with the accounting requirements of that Act).]
F109. . .F109. . .
[F110The Comptroller and Auditor General.Functions under Part 2 of the National Audit Act 1983.]
[F111The Scottish MinistersFunctions under the enactments relating to insolvency
The Accountant in BankruptcyFunctions he has under the enactments relating to insolvency.]
[F112 The Regulator of Community Interest Companies. Functions under the Companies (Audit, Investigations and Community Enterprise) Act 2004.]
[F113The Gambling Commission [F114Functions under—

(a)the Gambling Act 2005,

(b)sections 5 to 10 and 15 of the National Lottery etc. Act 1993.]]

[F115Note: Article 3(4) of the Companies (Disclosure of Information) (Designated Authorities) (No. 2) Order 2002 restricts the circumstances in which disclosure for the purpose of enabling or assisting the Comptroller and Auditor General to discharge his relevant functions is permitted.]

(5)The Secretary of State may by order amend the Table in subsection (4) so as to—

(a)add any public or other authority to the Table and specify the relevant functions of that authority,

(b)remove any authority from the Table, or

(c)add functions to, or remove functions from, those which are relevant functions in relation to an authority specified in the Table;

and the order may impose conditions subject to which, or otherwise restrict the circumstances in which, disclosure is permitted.

(6)An order under this section shall be made by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament.

Textual Amendments

F86S. 87(2)(b)(i)(ia) substituted for s. 87(2)(b)(i) (1.4.2013) by Financial Services Act 2012 (c. 21), s. 122(3), Sch. 18 para. 64(2) (with Sch. 20); S.I. 2013/423, art. 3, Sch.

F87Words in s. 87(2)(c)(i) substituted (1.1.2010) by Legal Services Act 2007 (c. 29), s. 211(2), Sch. 21 para. 82(a) (with ss. 29, 192, 193); S.I. 2009/3250, art. 2(h)

F89Words in s. 87(2)(d) substituted (E.W.S.) (6.4.2010) by The Transfer of Tribunal Functions Order 2010 (S.I. 2010/22), art. 1(2)(e), Sch. 2 para. 9(b) (with Sch. 5)

F91S. 87(4): Entry in the Table substituted (1.12.2001) by S.I. 2001/3649, arts. 1, 77(5)

F92S. 87(4): Entry in the Table substituted (1.12.2001) by S.I. 2001/3649, arts. 1, 77(6)

F93S. 87(4): Entry in the Table substituted (1.12.2001) by S.I. 2001/3649, arts. 1, 77(7)

F94S. 87(4): Entries in the Table substituted (1.12.2001) by S.I. 2001/3649, arts. 1, 77(8)

F95S. 87(4): Entries in the Table repealed (1.12.2001) by S.I. 2001/3649, arts. 1, 77(4)

F96S. 87(4) Table: words inserted (1.6.1998) by 1998 c. 11, s. 23, Sch. 5 Pt. IV c. II para. 66(3); S.I. 1998/1120, art. 2

F97S. 87(4): Entry in the Table substituted (1.12.2001) by S.I. 2001/3649, arts. 1, 77(9)

F99S. 87(4): Entries in the Table inserted (1.12.2001) by S.I. 2001/3649, arts. 1, 77(10)

F104S. 87(4): Entry in the Table omitted (30.4.2001) by virtue of S.I. 2001/1283, art. 3(4)

F105S. 87(4) Table: entries substituted (6.4.2005) for entry relating to the Occupational Pensions Regulatory Authority by Pensions Act 2004 (c. 35), ss. 319(1), 322, Sch. 12 para. 6; S.I. 2005/275, art. 2(7), Sch. Pt. 7 (subject to art. 2(12))

F107Words in the Table in s. 87(4) substituted (1.12.2001) by S.I. 2001/3649, arts. 1, 77(11)

F108S. 87(4) Table: entry inserted (16.8.1993) by S.I. 1993/1826, art. 3

F110S. 87(4) Table: Entry inserted (14.8.2002) by S.I. 2002/1889, art. 3(2)

F111S. 87(4) Table: entries inserted (1.7.1999) by S.I. 1999/1820, art. 4, Sch. 2 Pt. I para. 96

F115S. 87(4): Table Note added (14.8.2002) by S.I. 2002/1889, art. 3(3)

Modifications etc. (not altering text)

C11S. 87 amended (temp. from 3.9.2001) by S.I. 2001/2966, art. 7

S. 87 disclosure powers extended (14.12.2001) by 2001 c. 24, ss. 17, 127, Sch. 4 Pt. I para. 28

C12S. 87(1)(b) restricted (14.8.2002) by S.I. 2002/1889, art. 3(4)

Commencement Information

I2S. 87 wholly in force at 25.4.1991 see s. 215 and S.I. 1990/142 and 1991/878, art. 2, Sch.

Marginal Citations

88 Exercise of powers in relation to Northern Ireland.U.K.

(1)The following provisions apply where it appears to the Secretary of State that a request for assistance by an overseas regulatory authority may involve the powers conferred by section 83 being exercised in Northern Ireland in relation to matters which are transferred matters within the meaning of the M13Northern Ireland Constitution Act 1973.

(2)The Secretary of State shall before deciding whether to accede to the request consult the Department of Economic Development in Northern Ireland, and if he decides to accede to the request and it appears to him—

(a)that the powers should be exercised in Northern Ireland, and

(b)that the purposes for which they should be so exercised relate wholly or primarily to transferred matters,

he shall by instrument in writing authorise the Department to exercise in Northern Ireland his powers under section 83.

(3)The following provisions have effect in relation to the exercise of powers by virtue of such an authority with the substitution for references to the Secretary of State of references to the Department of Economic Development in Northern Ireland—

(a)section 84 (exercise of powers by officer, &c.),

[F116(b)section 449 of the Companies Act 1985 and sections 86 and 87 above (restrictions on disclosure of information);]

(c)section 89 (authority for institution of criminal proceedings);

and references to the Secretary of State in other enactments which proceed by reference to those provisions shall be construed accordingly as being or including references to the Department.

(4)The Secretary of State may after consultation with the Department of Economic Development in Northern Ireland revoke an authority given to the Department under this section.

(5)In that case nothing in the provisions referred to in subsection (3)(b) shall apply so as to prevent the Department from giving the Secretary of State any information obtained by virtue of the authority; and (without prejudice to their application in relation to disclosure by the Department) those provisions shall apply to the disclosure of such information by the Secretary of State as if it had been obtained by him in the first place.

(6)Nothing in this section affects the exercise by the Secretary of State of any powers in Northern Ireland—

(a)in a case where at the time of acceding to the request it did not appear to him that the circumstances were such as to require him to authorise the Department of Economic Development in Northern Ireland to exercise those powers, or

(b)after the revocation by him of any such authority;

and no objection shall be taken to anything done by or in relation to the Secretary of State or the Department on the ground that it should have been done by or in relation to the other.

Textual Amendments

F116S. 88(3)(b) substituted (1.12.2001) by S.I. 2001/3649, arts. 1, 78

Marginal Citations

89 Prosecutions.U.K.

Proceedings for an offence under section 85 or 86 shall not be instituted—

(a)in England and Wales, except by or with the consent of the Secretary of State or the Director of Public Prosecutions;

(b)in Northern Ireland, except by or with the consent of the Secretary of State or the Director of Public Prosecutions for Northern Ireland.

90 Offences by bodies corporate, partnerships and unincorporated associations.U.K.

(1)Where an offence under section 85 or 86 committed by a body corporate is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of, a director, manager, secretary or other similar officer of the body, or a person purporting to act in any such capacity, he as well as the body corporate is guilty of the offence and liable to be proceeded against and punished accordingly.

(2)Where the affairs of a body corporate are managed by its members, subsection (1) applies in relation to the acts and defaults of a member in connection with his functions of management as to a director of a body corporate.

(3)Where an offence under section 85 or 86 committed by a partnership is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of, a partner, he as well as the partnership is guilty of the offence and liable to be proceeded against and punished accordingly.

(4)Where an offence under section 85 or 86 committed by an unincorporated association (other than a partnership) is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of, any officer of the association or any member of its governing body, he as well as the association is guilty of the offence and liable to be proceeded against and punished accordingly.

91 Jurisdiction and procedure in respect of offences.U.K.

(1)Summary proceedings for an offence under section 85 may, without prejudice to any jurisdiction exercisable apart from this section, be taken against a body corporate or unincorporated association at any place at which it has a place of business and against an individual at any place where he is for the time being.

(2)Proceedings for an offence alleged to have been committed under section 85 or 86 by an unincorporated association shall be brought in the name of the association (and not in that of any of its members), and for the purposes of any such proceedings any rules of court relating to the service of documents apply as in relation to a body corporate.

(3)Section 33 of the M14Criminal Justice Act 1925 and Schedule 3 to the M15Magistrates’ Courts Act 1980 (procedure on charge of offence against a corporation) apply in a case in which an unincorporated association is charged in England and Wales with an offence under section 85 or 86 as they apply in the case of a corporation.

(4)In relation to proceedings on indictment in Scotland for an offence alleged to have been committed under section 85 or 86 by an unincorporated association, [F117section 70 of the M16Criminal Procedure (Scotland) Act 1995] (proceedings on indictment against bodies corporate) applies as if the association were a body corporate.

(5)Section 18 of the M17Criminal Justice Act (Northern Ireland) 1945 and Schedule 4 to the M18Magistrates’ Courts (Northern Ireland) Order 1981 (procedure on charge of offence against a corporation) apply in a case in which an unincorporated association is charged in Northern Ireland with an offence under section 85 or 86 as they apply in the case of a corporation.

(6)A fine imposed on an unincorporated association on its conviction of such an offence shall be paid out of the funds of the association.

Prospective

F118 Part IVU.K. Registration of Company Charges

F118 IntroductionU.K.

F11892 Introduction.U.K.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F118 Registration in the companies charges registerU.K.

F11893 Charges requiring registration.U.K.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F11894 The companies charges register.U.K.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F11895 Delivery of particulars for registration.U.K.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F11896 Delivery of further particulars.U.K.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F11897 Effect of omissions and errors in registered particulars.U.K.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F11898 Memorandum of charge ceasing to affect company’s property.U.K.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F11899 Further provisions with respect to voidness of charges.U.K.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F118100 Additional information to be registered.U.K.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F118 Copies of instruments and register to be kept by the companyU.K.

F118101 Copies of instruments and register to be kept by the companyU.K.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F118 Supplementary provisionsU.K.

F118102 Power to make further provision by regulations.U.K.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F118103 Other supplementary provisions.U.K.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F118104 Interpretation, &c.U.K.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F118105 Charges on property of oversea company.U.K.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F118106 Application of provisions to unregistered companies.U.K.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F118107 Consequential amendments.U.K.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Part VU.K. Other amendments of Company Law

A company’s capacity and related mattersU.K.

F119108 A company’s objects and the power of the directors to bind it.U.K.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F119Ss. 108-110 repealed (1.10.2009) by Companies Act 2006 (c. 46), s. 1300(2), Sch. 16; S.I. 2008/2860, art. 4, Sch. 1 Pt. 1 (with arts. 7, 8, Sch. 2) (which transitional provisions in Sch. 2 are amended (1.10.2009) by S.I. 2009/2476, arts. 1(3), 2(3)(4) and by S.I. 2009/1802, arts. 1, 18, Sch.)

F119109

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F119Ss. 108-110 repealed (1.10.2009) by Companies Act 2006 (c. 46), s. 1300(2), Sch. 16; S.I. 2008/2860, art. 4, Sch. 1 Pt. 1 (with arts. 7, 8, Sch. 2) (which transitional provisions in Sch. 2 are amended (1.10.2009) by S.I. 2009/2476, arts. 1(3), 2(3)(4) and by S.I. 2009/1802, arts. 1, 18, Sch.)

F119110 Statement of company’s objects.U.K.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F119Ss. 108-110 repealed (1.10.2009) by Companies Act 2006 (c. 46), s. 1300(2), Sch. 16; S.I. 2008/2860, art. 4, Sch. 1 Pt. 1 (with arts. 7, 8, Sch. 2) (which transitional provisions in Sch. 2 are amended (1.10.2009) by S.I. 2009/2476, arts. 1(3), 2(3)(4) and by S.I. 2009/1802, arts. 1, 18, Sch.)

F120111. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .E+W+S

Textual Amendments

F120S. 111 repealed (1.8.1993) by 1993 c. 10, ss. 98(2), 99(1), Sch. 7

112 Charitable companies (Scotland).E+W+S

(1)In the following provisions (which extend to Scotland only)—

(a)company” means [F121a company registered under the Companies Act 2006]; and

(b)charity” means a body [F122entered in the Scottish Charity Register].

(2)Where a charity is a company or other body corporate having power to alter the instruments establishing or regulating it as a body corporate, no exercise of that power which has the effect of the body ceasing to be a charity shall be valid so as to affect the application of—

(a)any property acquired by virtue of any transfer, contract or obligation previously effected otherwise than for full consideration in money or money’s worth, or any property representing property so acquired,

(b)any property representing income which has accrued before the alteration is made, or

(c)the income from any such property as aforesaid.

(3)[F123Sections 39 and 40 of the Companies Act 2006 (company’s capacity and power of directors to bind company)] do not apply to the acts of a company which is a charity except in favour of a person who—

(a)gives full consideration in money or money’s worth in relation to the act in question, and

(b)does not know that the act is not permitted by the company’s [F124constitution] or, as the case may be, is beyond the powers of the directors,

or who does not know at the time the act is done that the company is a charity.

(4)However, where such a company purports to transfer or grant an interest in property, the fact that the act was not permitted by the company’s [F125constitution] or, as the case may be, that the directors in connection with the act exceeded any limitation on their powers under the company’s constitution, does not affect the title of a person who subsequently acquires the property or any interest in it for full consideration without actual notice of any such circumstances affecting the validity of the company’s act.

(5)In any proceedings arising out of subsection (3) the burden of proving—

(a)that a person knew that an act was not permitted by the company’s [F126constitution] or was beyond the powers of the directors, or

(b)that a person knew that the company was a charity,

lies on the person making that allegation.

(6)Where a company is a charity and its name does not include the word “charity” or the word “charitable”, the fact that the company is a charity shall be stated in English in legible characters—

(a)in all business letters of the company,

(b)in all its notices and other official publications,

(c)in all bills of exchange, promissory notes, endorsements, cheques and orders for money or goods purporting to be signed by or on behalf of the company,

(d)in all conveyances purporting to be executed by the company, and

(e)in all its bills of parcels, invoices, receipts and letters of credit.

(7)In subsection (6)(d) “conveyance” means any document for the creation, transfer, variation or extinction of an interest in land.

[F127(8)If a company fails to comply with subsection (6) it commits an offence.

(9)An officer of a company, or a person acting on its behalf, who—

(a)issues or authorises the issue of any business letter of the company, or any notice or other official publication of the company, in which the statement required by subsection (6) does not appear, or

(b)issues or authorises the issue of any bill, invoice, receipt or letter of credit in which the statement required by subsection (6) does not appear,

commits an offence.

(10)An officer of a company, or a person acting on its behalf, who signs or authorises to be signed on behalf of the company any bill of exchange, promissory note, endorsement, cheque or order for money or goods in which the statement required by subsection (6) does not appear—

(a)commits an offence, and

(b)is personally liable to the holder of the bill of exchange, promissory note, endorsement, cheque or order for money or goods for the amount of it (unless it is duly paid by the company).

(11)A person guilty of an offence under subsection (8), (9) or (10) is liable on summary conviction to a fine not exceeding level 3 on the standard scale.]

Textual Amendments

Commencement Information

I3Ss 108-112 and Schedule 19 para. 11 were not in force at the 1.2.1991 (base date) but were brought into force on 4.2.1991 by S.I. 1990/2569.

De-regulation of private companiesU.K.

113 Written resolutions of private companies.U.K.

F128. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

114 Written resolutions: supplementary provisions.U.K.

F129. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F129S. 114 repealed (1.10.2007 for s. 114(1) and otherwise prosp.) by Companies Act 2006 (c. 46), ss. 1295, 1300(2), Sch. 16; S.I. 2007/2194. {art. 8}, Sch. 2 Pt. 1 (with art. 12, Sch. 3 (as amended by S.I. 2007/2607, arts. 1, 4 and S.I. 2007/3495, arts. 2(6), 11, Sch. 5 para. 2(3)-(7)) and subject to Sch. 1)

F130115 Election by private company to dispense with certain requirements.U.K.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F130S. 115 repealed (1.10.2007 for the repeal of s. 115(2)(3), 1.10.2009 for the repeal of s. 115(1)) by Companies Act 2006 (c. 46), s. 1300(2), Sch. 16; S.I. 2007/2194, art. 8, Sch. 2 Pt. 1 (with arts. 7, 12, Sch. 3 para. 48); S.I. 2008/2860, art. 4, Sch. 1 Pt. 1 (with arts. 7, 8, Sch. 2) (which transitional provisions in Sch. 2 are amended (1.10.2009) by S.I. 2009/2476, arts. 1(3), 2(3)(4) and by S.I. 2009/1802, arts. 1, 18, Sch.)

116 Elective resolution of private company.U.K.

[F131(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(3)In section 380 (registration of resolutions), in subsection (4) (resolutions to which the section applies), after paragraph (b) insert—

(bb)an elective resolution or a resolution revoking such a resolution;.]

Textual Amendments

F131S. 116 repealed (1.10.2009 for the repeal of s. 116(1)(2)) by Companies Act 2006 (c. 46), s. 1300(2), Sch. 16; S.I. 2008/2860, art. 4, Sch. 1 Pt. 1 (with arts. 7, 8, Sch. 2) (which transitional provisions in Sch. 2 are amended (1.10.2009) by S.I. 2009/2476, arts. 1(3), 2(3)(4) and by S.I. 2009/1802, arts. 1, 18, Sch.)

F132117 Power to make further provision by regulations.U.K.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F132S. 117 repealed (1.10.2009) by Companies Act 2006 (c. 46), s. 1300(2), Sch. 16; S.I. 2008/2860, art. 4, Sch. 1 Pt. 1 (with arts. 7, 8, Sch. 2) (which transitional provisions in Sch. 2 are amended (1.10.2009) by S.I. 2009/2476, arts. 1(3), 2(3)(4) and by S.I. 2009/1802, arts. 1, 18, Sch.)

Appointment and removal of auditors and related mattersU.K.

118 Introduction.U.K.

F133. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

119 Appointment of auditors.U.K.

F134. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

120 Rights of auditors.U.K.

F135. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

121 Remuneration of auditors.U.K.

F136. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

122 Removal, resignation, &c. of auditors.U.K.

F137. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F138123 Statement by person ceasing to hold office as auditor.U.K.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F138S. 123 repealed (6.4.2008 for the repeal of s. 123(1)-(4), 1.10.2009 in so far as not already in force) by Companies Act 2006 (c. 46), s. 1300(2), Sch. 16; S.I. 2007/3495, art. 8(a), Sch. 2 Pt. 1 (with arts. 7, 12); S.I. 2008/2860, art. 4, Sch. 1 Pt. 1 (with arts. 7, 8, Sch. 2) (which transitional provisions in Sch. 2 are amended (1.10.2009) by S.I. 2009/2476, arts. 1(3), 2(3)(4) and by S.I. 2009/1802, arts. 1, 18, Sch.)

F139124. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .E+W+S

Company records and related mattersU.K.

125 Delivery of documents to the registrar.U.K.

[F140(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(2)For section 707 of the Companies Act 1985 (power of registrar to accept information on microfilm, &c.) substitute—

707 Delivery to the registrar of documents otherwise than in legible form.

(1)This section applies to the delivery to the registrar under any provision of the Companies Acts of documents otherwise than in legible form.

(2)Any requirement to deliver a document to the registrar, or to deliver a document in the prescribed form, is satisfied by the communication to the registrar of the requisite information in any non-legible form prescribed for the purposes of this section by regulations or approved by the registrar.

(3)Where the document is required to be signed or sealed, it shall instead be authenticated in such manner as may be prescribed by regulations or approved by the registrar.

(4)The document must—

(a)contain in a prominent position the registered number of the company to which it relates,

(b)satisfy any requirements prescribed by regulations for the purposes of this section, and

(c)be furnished in such manner, and conform to such requirements, as the registrar may specify for the purpose of enabling him to read and copy the document.

(5)If a document is delivered to the registrar which does not comply with the requirements of this section, he may serve on the person by whom the document was delivered (or, if there are two or more such persons, on any of them) a notice indicating the respect in which the document does not comply.

(6)Where the registrar serves such a notice, then, unless a replacement document—

(a)is delivered to him within 14 days after the service of the notice, and

(b)complies with the requirements of this section (or section 706) or is not rejected by him for failure to comply with those requirements,

the original document shall be deemed not to have been delivered to him.

But for the purposes of any enactment imposing a penalty for failure to deliver, so far as it imposes a penalty for continued contravention, no account shall be taken of the period between the delivery of the original document and the end of the period of 14 days after service of the registrar’s notice.

(7)The Secretary of State may by regulations make further provision with respect to the application of this section in relation to instantaneous forms of communication.

(8)Regulations made for the purposes of this section may make different provision with respect to different descriptions of document and different forms of communication, and as respects delivery to the registrar for England and Wales and delivery to the registrar for Scotland..]

Textual Amendments

F140S. 125 repealed (1.10.2009 for the repeal of s. 125(1)) by Companies Act 2006 (c. 46), s. 1300(2), Sch. 16; S.I. 2008/2860, art. 4, Sch. 1 Pt. 1 (with arts. 7, 8, Sch. 2) (which transitional provisions in Sch. 2 are amended (1.10.2009) by S.I. 2009/2476, arts. 1(3), 2(3)(4) and by S.I. 2009/1802, arts. 1, 18, Sch.)

F141126 Keeping and inspection of company records.U.K.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F141Ss. 126-129 repealed (1.10.2009) by Companies Act 2006 (c. 46), s. 1300(2), Sch. 16; S.I. 2008/2860, art. 4, Sch. 1 Pt. 1 (with arts. 7, 8, Sch. 2) (which transitional provisions in Sch. 2 are amended (1.10.2009) by S.I. 2009/2476, arts. 1(3), 2(3)(4) and by S.I. 2009/1802, arts. 1, 18, Sch.)

F141127 Supplementary provisions as to company records and related matters.U.K.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F141Ss. 126-129 repealed (1.10.2009) by Companies Act 2006 (c. 46), s. 1300(2), Sch. 16; S.I. 2008/2860, art. 4, Sch. 1 Pt. 1 (with arts. 7, 8, Sch. 2) (which transitional provisions in Sch. 2 are amended (1.10.2009) by S.I. 2009/2476, arts. 1(3), 2(3)(4) and by S.I. 2009/1802, arts. 1, 18, Sch.)

MiscellaneousU.K.

Prospective

F141128 Form and articles for partnership company.U.K.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F141Ss. 126-129 repealed (1.10.2009) by Companies Act 2006 (c. 46), s. 1300(2), Sch. 16; S.I. 2008/2860, art. 4, Sch. 1 Pt. 1 (with arts. 7, 8, Sch. 2) (which transitional provisions in Sch. 2 are amended (1.10.2009) by S.I. 2009/2476, arts. 1(3), 2(3)(4) and by S.I. 2009/1802, arts. 1, 18, Sch.)

F141129 Membership of holding company.U.K.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F141Ss. 126-129 repealed (1.10.2009) by Companies Act 2006 (c. 46), s. 1300(2), Sch. 16; S.I. 2008/2860, art. 4, Sch. 1 Pt. 1 (with arts. 7, 8, Sch. 2) (which transitional provisions in Sch. 2 are amended (1.10.2009) by S.I. 2009/2476, arts. 1(3), 2(3)(4) and by S.I. 2009/1802, arts. 1, 18, Sch.)

130 Company contracts and execution of documents by companies.U.K.

[F142(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F143

(4). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(5). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(6)The Secretary of State may make provision by regulations applying sections 36 to 36C of the Companies Act 1985 (company contracts; execution of documents; [F144execution of deeds;] pre-incorporation contracts, deeds and obligations) to companies incorporated outside Great Britain, subject to such exceptions, adaptations or modifications as may be specified in the regulations.

Regulations under this subsection shall be made by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament.

(7). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ]

Textual Amendments

F142S. 130 repealed (1.10.2009 for the repeal of s. 130(1)-(5)(7)) by Companies Act 2006 (c. 46), s. 1300(2), Sch. 16; S.I. 2008/2860, art. 4, Sch. 1 Pt. 1 (with arts. 7, 8, Sch. 2) (which transitional provisions in Sch. 2 are amended (1.10.2009) by S.I. 2009/2476, arts. 1(3), 2(3)(4) and by S.I. 2009/1802, arts. 1, 18, Sch.)

F145131 Members’ rights to damages, &c.U.K.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F145Ss. 131-133 repealed (1.10.2009) by Companies Act 2006 (c. 46), s. 1300(2), Sch. 16; S.I. 2008/2860, art. 4, Sch. 1 Pt. 1 (with arts. 7, 8, Sch. 2) (which transitional provisions in Sch. 2 are amended (1.10.2009) by S.I. 2009/2476, arts. 1(3), 2(3)(4) and by S.I. 2009/1802, arts. 1, 18, Sch.)

F145132 Financial assistance for purposes of employees’ share scheme.U.K.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F145Ss. 131-133 repealed (1.10.2009) by Companies Act 2006 (c. 46), s. 1300(2), Sch. 16; S.I. 2008/2860, art. 4, Sch. 1 Pt. 1 (with arts. 7, 8, Sch. 2) (which transitional provisions in Sch. 2 are amended (1.10.2009) by S.I. 2009/2476, arts. 1(3), 2(3)(4) and by S.I. 2009/1802, arts. 1, 18, Sch.)

Prospective

F145133 Issue of redeemable shares.U.K.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F145Ss. 131-133 repealed (1.10.2009) by Companies Act 2006 (c. 46), s. 1300(2), Sch. 16; S.I. 2008/2860, art. 4, Sch. 1 Pt. 1 (with arts. 7, 8, Sch. 2) (which transitional provisions in Sch. 2 are amended (1.10.2009) by S.I. 2009/2476, arts. 1(3), 2(3)(4) and by S.I. 2009/1802, arts. 1, 18, Sch.)

134 Disclosure of interests in shares.U.K.

F146. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

135 Orders imposing restrictions on shares.U.K.

(1)The Secretary of State may by regulations made by statutory instrument make such amendments of the provisions of the M19Companies Act 1985 [F147and the Companies Act 2006] relating to orders imposing restrictions on shares as appear to him necessary or expedient—

(a)for enabling orders to be made in a form protecting the rights of third parties;

(b)with respect to the circumstances in which restrictions may be relaxed or removed;

(c)with respect to the making of interim orders by a court.

(2)The provisions referred to in subsection (1) are F148. . . , section 445 and Part XV of the Companies Act 1985 [F149and section 794 of the Companies Act 2006].

(3)The regulations may make different provision for different cases and may contain such transitional and other supplementary and incidental provisions as appear to the Secretary of State to be appropriate.

(4)Regulations under this section shall not be made unless a draft of the regulations has been laid before Parliament and approved by resolution of each House of Parliament.

F150136 A company’s registered office.U.K.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F150S. 136 repealed (1.10.2009) by Companies Act 2006 (c. 46), s. 1300(2), Sch. 16; S.I. 2008/2860, art. 4, Sch. 1 Pt. 1 (with arts. 7, 8, Sch. 2) (which transitional provisions in Sch. 2 are amended (1.10.2009) by S.I. 2009/2476, arts. 1(3), 2(3)(4) and by S.I. 2009/1802, arts. 1, 18, Sch.)

137 Effecting of insurance for officers and auditors of company.U.K.

F151. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

138 Increase of limits on certain exemptions.U.K.

F152. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F152S. 138 repealed (1.10.2007) by Companies Act 2006 (c. 46), ss. 1295, 1300(2), Sch. 16; S.I. 2007/2194. {art. 8}, Sch. 2 Pt. 1 (with art. 12, Sch. 3 (as amended by S.I. 2007/2607, arts. 1, 4 and S.I. 2007/3495, arts. 2(6), 11, Sch. 5 para. 2(3)-(7)) and subject to Sch. 1)

139 Annual returns.U.K.

F153(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F153(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F153(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(4)In Schedule 1 to the M20Company Directors Disqualification Act 1986 (matters relevant to determining unfitness of directors), in paragraph 4 (failure of company to comply with certain provisions), for sub-paragraphs (f) and (g) substitute—

(f)section 363 (duty of company to make annual returns);.

(5)F154. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F153S. 139(1)-(3) repealed (1.10.2009) by Companies Act 2006 (c. 46), s. 1300(2), Sch. 16; S.I. 2008/2860, art. 4, Sch. 1 Pt. 1 (with arts. 7, 8, Sch. 2) (which transitional provisions in Sch. 2 are amended (1.10.2009) by S.I. 2009/2476, arts. 1(3), 2(3)(4) and by S.I. 2009/1802, arts. 1, 18, Sch.)

F154S. 139(5) repealed (22.7.2004 with effect in accordance with s. 77 of the amending Act) by Finance Act 2004 (c. 12), s. 326, Sch. 42 Pt. 2(7)

Marginal Citations

140 Floating charges (Scotland).E+W+S

(1)In section 463 of the Companies Act 1985 (effect of floating charge on winding up), in subsection (1) for the words “On the commencement of the winding up of a company,” there shall be substituted the words “ Where a company goes into liquidation within the meaning of section 247(2) of the Insolvency Act 1986, ”.

(2)Section 464 of the Companies Act 1985 (ranking of floating charges) is amended as follows.

(3)In subsection (1)(b) at the beginning there shall be inserted the words “ with the consent of the holder of any subsisting floating charge or fixed security which would be adversely affected, ”.

(4)After subsection (1) there shall be inserted the following subsection—

(1A)Where an instrument creating a floating charge contains any such provision as is mentioned in subsection (1)(a), that provision shall be effective to confer priority on the floating charge over any fixed security or floating charge created after the date of the instrument..

(5)For subsection (3) there shall be substituted—

(3)The order of ranking of the floating charge with any other subsisting or future floating charges or fixed securities over all or any part of the company’s property is determined in accordance with the provisions of subsections (4) and (5) except where it is determined in accordance with any provision such as is mentioned in paragraph (a) or (b) of subsection (1)..

(6)In subsection (5) at the end there shall be added the following paragraph—

; and

(e)(in the case of a floating charge to secure a contingent liability other than a liability arising under any further advances made from time to time) the maximum sum to which that contingent liability is capable of amounting whether or not it is contractually limited..

(7)In subsection (6) after the words “subject to” there shall be inserted the words “ Part XII and to ”.

(8)In section 466 of the Companies Act 1985 (alteration of floating charges), subsections (4) and (5) and in subsection (6) the words “falling under subsection (4) of this section” shall cease to have effect.

Modifications etc. (not altering text)

C13S. 140(1) restricted (20.5.1995) by S.I. 1995/1352, art.4

S. 140(3) restricted (20.5.1995) by S.I. 1995/1352, art.5

S. 140(6) restricted (20.5.1995) by S.I. 1995/1352, art.8

Commencement Information

I4S. 140 partly in force; s. 140 not in force at Royal Assent see s. 215(1)(2); s. 140(1)-(6) in force at 3.7.1995 by S.I. 1995/1352, art. 3(a)

F155141 Application to declare dissolution of company void.U.K.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F155Ss. 141-143 repealed (20.1.2007 for the repeal of s. 143(5), 6.4.2007 for the repeal of s. 143(10), 1.10.2007 for the repeal of s. 143(8)(9), 6.4.2008 for the repeal of s. 143(4), 1.10.2008 for the repeal of s. 141(4) for specified purposes, 1.10.2009 in so far as not already in force) by Companies Act 2006 (c. 46), s. 1300(2), Sch. 16; S.I. 2006/3428, art. 7(b)(c), Sch. 3 Pt. 1, Sch. 4 Pt. 1 (with arts. 6, 8(2)); S.I. 2007/2194, art. 8, Sch. 2 Pt. 1 (with arts. 7, 12, Sch. 3 para. 48); S.I. 2007/3495, art. 8(a), Sch. 2 Pt. 1 (with arts. 7, 12); S.I. 2008/1886, art. 2(f) (with arts. 6, 7); S.I. 2008/2860, art. 4, Sch. 1 Pt. 1 (with arts. 7, 8, Sch. 2) (which transitional provisions in Sch. 2 are amended (1.10.2009) by S.I. 2009/2476, arts. 1(3), 2(3)(4) and by S.I. 2009/1802, arts. 1, 18, Sch.)

Prospective

F155142 Abolition of doctrine of deemed notice.U.K.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F155Ss. 141-143 repealed (20.1.2007 for the repeal of s. 143(5), 6.4.2007 for the repeal of s. 143(10), 1.10.2007 for the repeal of s. 143(8)(9), 6.4.2008 for the repeal of s. 143(4), 1.10.2008 for the repeal of s. 141(4) for specified purposes, 1.10.2009 in so far as not already in force) by Companies Act 2006 (c. 46), s. 1300(2), Sch. 16; S.I. 2006/3428, art. 7(b)(c), Sch. 3 Pt. 1, Sch. 4 Pt. 1 (with arts. 6, 8(2)); S.I. 2007/2194, art. 8, Sch. 2 Pt. 1 (with arts. 7, 12, Sch. 3 para. 48); S.I. 2007/3495, art. 8(a), Sch. 2 Pt. 1 (with arts. 7, 12); S.I. 2008/1886, art. 2(f) (with arts. 6, 7); S.I. 2008/2860, art. 4, Sch. 1 Pt. 1 (with arts. 7, 8, Sch. 2) (which transitional provisions in Sch. 2 are amended (1.10.2009) by S.I. 2009/2476, arts. 1(3), 2(3)(4) and by S.I. 2009/1802, arts. 1, 18, Sch.)

F155143 Rights of inspection and related matters.U.K.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F155Ss. 141-143 repealed (20.1.2007 for the repeal of s. 143(5), 6.4.2007 for the repeal of s. 143(10), 1.10.2007 for the repeal of s. 143(8)(9), 6.4.2008 for the repeal of s. 143(4), 1.10.2008 for the repeal of s. 141(4) for specified purposes, 1.10.2009 in so far as not already in force) by Companies Act 2006 (c. 46), s. 1300(2), Sch. 16; S.I. 2006/3428, art. 7(b)(c), Sch. 3 Pt. 1, Sch. 4 Pt. 1 (with arts. 6, 8(2)); S.I. 2007/2194, art. 8, Sch. 2 Pt. 1 (with arts. 7, 12, Sch. 3 para. 48); S.I. 2007/3495, art. 8(a), Sch. 2 Pt. 1 (with arts. 7, 12); S.I. 2008/1886, art. 2(f) (with arts. 6, 7); S.I. 2008/2860, art. 4, Sch. 1 Pt. 1 (with arts. 7, 8, Sch. 2) (which transitional provisions in Sch. 2 are amended (1.10.2009) by S.I. 2009/2476, arts. 1(3), 2(3)(4) and by S.I. 2009/1802, arts. 1, 18, Sch.)

144“Subsidiary”, “holding company” and “wholly-owned subsidiary”.U.K.

F156(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F156(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F156(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(4)Schedule 18 contains amendments and savings consequential on the amendments made by this section; and the Secretary of State may by regulations make such further amendments or savings as appear to him to be necessary or expedient.

(5)Regulations under this section shall be made by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament.

(6)So much of section 23(3) of the Interpretation Act 1978 as applies section 17(2)(a) of that Act (presumption as to meaning of references to enactments repealed and re-enacted) to deeds or other instruments or documents does not apply in relation to the repeal and re-enactment by this section of section 736 of the Companies Act 1985.

Textual Amendments

F156S. 144(1)-(3) repealed (1.10.2009) by Companies Act 2006 (c. 46), s. 1300(2), Sch. 16; S.I. 2008/2860, art. 4, Sch. 1 Pt. 1 (with arts. 7, 8, Sch. 2) (which transitional provisions in Sch. 2 are amended (1.10.2009) by S.I. 2009/2476, arts. 1(3), 2(3)(4) and by S.I. 2009/1802, arts. 1, 18, Sch.)

145

The Companies Act 1985 has effect with the further amendments specified in Schedule 19.

Commencement Information

I5S. 145 partly in force; s. 145 not in force at Royal Assent see s. 215(1)(2); s. 145 in force at 3.7.1995 (so far as it extends to paragraph 20 of Schedule 19 to this Act) by S.I. 1995/1352, art. 3(b)

Part VIU.K. Mergers and Related Matters

146. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .U.K.

F157. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F157S. 146 repealed (20.6.2003 for certain purposes and otherwise 29.12.2004) by 2002 c. 40, ss. 278, 279, Sch. 26; S.I. 2003/1397, arts. {2(1)}, 3(1), Sch.; S.I. 2004/3233, art. 2, Sch. (with arts. 3-5)

147 Undertakings as alternative to merger reference.U.K.

F158. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F158S. 147 repealed (20.6.2003 for certain purposes and otherwise 29.12.2004) by 2002 c. 40, ss. 278, 279, Sch. 26; S.I. 2003/1397, arts. {2(1)}, 3(1), Sch.; S.I. 2004/3233, art. 2, Sch. (with arts. 3-5)

148 Enforcement of undertakings.U.K.

F159. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F159S. 148 repealed (20.6.2003 for certain purposes and otherwise 29.12.2004) by 2002 c. 40, ss. 278, 279, Sch. 26; S.I. 2003/1397, arts. {2(1)}, 3(1), Sch.; S.I. 2004/3233, art. 2, Sch. (with arts. 3-5)

149 Temporary restrictions on share dealings.U.K.

F160. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F160S. 149 repealed (20.6.2003 for certain purposes and otherwise 29.12.2004) by 2002 c. 40, ss. 278, 279, Sch. 26; S.I. 2003/1397, arts. {2(1)}, 3(1), Sch.; S.I. 2004/3233, art. 2, Sch. (with arts. 3-5)

150 Obtaining control by stages.U.K.

F161. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F161S. 150 repealed (20.6.2003 for certain purposes and otherwise 29.12.2004) by 2002 c. 40, ss. 278, 279, Sch. 26; S.I. 2003/1397, arts. {2(1)}, 3(1), Sch.; S.I. 2004/3233, art. 2, Sch. (with arts. 3-5)

F162151 False or misleading information.U.K.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

152 Fees.U.K.

F163. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

152 Fees.E+W

(1)The Secretary of State may by regulations made by statutory instrument require the payment to him or to the Director of such fees as may be prescribed by the regulations in connection with the exercise by the Secretary of State, the Director and the Commission of their functions under Part V of the M79Fair Trading Act 1973.

(2)The regulations may provide for fees to be payable—

(a)in respect of—

(i)an application for the consent of the Secretary of State under section 58(1) of the Fair Trading Act 1973 to the transfer of a newspaper or of newspaper assets, and

(ii)a notice under section 75A(1) of that Act, and

(b)on the occurrence of any event specified in the regulations.

(3)The events that may be specified in the regulations by virtue of subsection (2)(b) above include—

(a)the making by the Secretary of State of a merger reference to the Commission under section 64 or 75 of the Fair Trading Act 1973,

(b)the announcement by the Secretary of State of his decision not to make a merger reference in any case where, at the time the announcement is made, he would under one of those sections have power to make a such a reference.

(4)The regulations may also contain provision—

(a)for ascertaining the persons by whom fees are payable,

(b)specifying whether any fee is payable to the Secretary of State or to the Director,

(c)for the amount of any fee to be calculated by reference to matters which may include—

(i)in a case involving functions of the Secretary of State under sections 57 to 61 of the M80Fair Trading Act 1973, the number of newspapers concerned, the number of separate editions (determined in accordance with the regulations) of each newspaper and the average circulation per day of publication (within the meaning of Part V of that Act) of each newspaper, and

(ii)in any other case, the value (determined in accordance with the regulations) of any assets concerned,

(d)as to the time when any fee is to be paid, and

(e)for the repayment by the Secretary of State or the Director of the whole or part of any fee in specified circumstances.

(5)The regulations may make different provision for different cases.

(6)Subsections (2) to (5) above do not prejudice the generality of subsection (1) above.

(7)In determining the amount of any fees to be prescribed by the regulations, the Secretary of State may take into account all costs incurred by him and by the Director in respect of the exercise by him, by the Commission and by the Director of their respective functions—

(a)under Part V of the Fair Trading Act 1973, and

(b)under Parts I, VII and VIII of that Act in relation to merger references or other matters arising under Part V.

(8)A statutory instrument containing regulations under this section shall be subject to annulment in pursuance of a resolution of either House of Parliament.

(9)Fees paid to the Secretary of State or the Director under this section shall be paid into the Consolidated Fund.

(10)In this section—

  • “the Commission”,

  • “the Director”, and

  • “merger reference”,

have the same meaning as in the Fair Trading Act 1973, and “newspaper” has the same meaning as in Part V of that Act.

(11)References in this section to Part V of the Fair Trading Act 1973 and to merger references under section 64 or 75 of that Act or under that Part [F704include sections 32 to 34 of the Water Industry Act 1991 and any reference under section 32 of that Act].

Extent Information

E3This version of this provision extends to England and Wales only; a separate version has been created for Scotland and Northern Ireland.

Textual Amendments

Marginal Citations

152 Fees.S+N.I.

(1)The Secretary of State may by regulations made by statutory instrument require the payment to him or to the Director of such fees as may be prescribed by the regulations in connection with the exercise by the Secretary of State, the Director and the Commission of their functions under Part V of the M81Fair Trading Act 1973.

(2)The regulations may provide for fees to be payable—

(a)in respect of—

(i)an application for the consent of the Secretary of State under section 58(1) of the Fair Trading Act 1973 to the transfer of a newspaper or of newspaper assets, and

(ii)a notice under section 75A(1) of that Act, and

(b)on the occurrence of any event specified in the regulations.

(3)The events that may be specified in the regulations by virtue of subsection (2)(b) above include—

(a)the making by the Secretary of State of a merger reference to the Commission under section 64 or 75 of the Fair Trading Act 1973,

(b)the announcement by the Secretary of State of his decision not to make a merger reference in any case where, at the time the announcement is made, he would under one of those sections have power to make a such a reference.

(4)The regulations may also contain provision—

(a)for ascertaining the persons by whom fees are payable,

(b)specifying whether any fee is payable to the Secretary of State or to the Director,

(c)for the amount of any fee to be calculated by reference to matters which may include—

(i)in a case involving functions of the Secretary of State under sections 57 to 61 of the M82Fair Trading Act 1973, the number of newspapers concerned, the number of separate editions (determined in accordance with the regulations) of each newspaper and the average circulation per day of publication (within the meaning of Part V of that Act) of each newspaper, and

(ii)in any other case, the value (determined in accordance with the regulations) of any assets concerned,

(d)as to the time when any fee is to be paid, and

(e)for the repayment by the Secretary of State or the Director of the whole or part of any fee in specified circumstances.

(5)The regulations may make different provision for different cases.

(6)Subsections (2) to (5) above do not prejudice the generality of subsection (1) above.

(7)In determining the amount of any fees to be prescribed by the regulations, the Secretary of State may take into account all costs incurred by him and by the Director in respect of the exercise by him, by the Commission and by the Director of their respective functions—

(a)under Part V of the Fair Trading Act 1973, and

(b)under Parts I, VII and VIII of that Act in relation to merger references or other matters arising under Part V.

(8)A statutory instrument containing regulations under this section shall be subject to annulment in pursuance of a resolution of either House of Parliament.

(9)Fees paid to the Secretary of State or the Director under this section shall be paid into the Consolidated Fund.

(10)In this section—

  • “the Commission”,

  • “the Director”, and

  • “merger reference”,

have the same meaning as in the Fair Trading Act 1973, and “newspaper” has the same meaning as in Part V of that Act.

(11)References in this section to Part V of the Fair Trading Act 1973 and to merger references under section 64 or 75 of that Act or under that Part include sections 29 and 30 of the M83Water Act 1989 and any reference under section 29 of that Act.

Extent Information

E4This version of this provision extends to Scotland and Northern Ireland only; a separate version has been created for England and Wales only.

Marginal Citations

153 Other amendments about mergers and related matters.U.K.

Schedule 20 to this Act has effect.

Part VIIU.K. Financial Markets and Insolvency

Modifications etc. (not altering text)

C14Pt. VII (ss. 154-191): functions of the Secretary of State transferred (7.6.1992) to the Treasury by S.I. 1992/1315, art. 2(1)(c) (with art. 6)

Pt. VII (ss. 154-191) applied (E.W.S.) (15.8.1995) by S.I. 1995/2049, reg.3; and applied (with modifications) (E.W.S.) (15.8.1995) by S.I. 1995/2049, regs.3,4,5,19, 26; and applied (with modifications) (15.7.1996) by S.I. 1996/1469, regs.3, 4, 5

C15Pt. VII: power to apply conferred (1.12.2001) by 2000 c. 8, s. 301(1)(a); S.I. 2001/3538, art. 2(1)

IntroductionU.K.

154 Introduction.U.K.

This Part has effect for the purposes of safeguarding the operation of certain financial markets by provisions with respect to—

(a)the insolvency, winding up or default of a person party to transactions in the market (sections 155 to 172),

(b)the effectiveness or enforcement of certain charges given to secure obligations in connection with such transactions (sections 173 to 176), and

(c)rights and remedies in relation to certain property provided as cover for margin in relation to such transactions [F164or as default fund contribution,] or subject to such a charge (sections 177 to 181).

Textual Amendments

Commencement Information

I6S. 154 wholly in force at 25.4.1991 see s. 215 and S.I. 1991/878, art. 2, Sch.

[F165Recognised bodies]U.K.

155 Market contracts.U.K.

[F166(1)In this Part—

(a)“clearing member client contract” means a contract between a recognised central counterparty and one or more of the parties mentioned in subsection (1A) which is recorded in the accounts of the recognised central counterparty as a position held for the account of a client, an indirect client or a group of clients or indirect clients;

(b)“clearing member house contract” means a contract between a recognised central counterparty and a clearing member recorded in the accounts of the recognised central counterparty as a position held for the account of a clearing member;

(c)“client trade” means a contract between two or more of the parties mentioned in subsection (1A) which corresponds to a clearing member client contract;

(d)“market contracts” means the contracts to which this Part applies by virtue of subsections (2) to [F167(3ZA)].]

[F168(1A)The parties referred to in subsections (1)(a) and (c) are—

(a)a clearing member;

(b)a client; and

(c)an indirect client.]

[F169(2)Except as provided in subsection (2A), in relation to a recognised investment exchange this Part applies to—

(a)contracts entered into by a member or designated non-member of the exchange [F170with a person other than the exchange]which are either

(i)contracts made on the exchange or on an exchange to whose undertaking the exchange has succeeded whether by amalgamation, merger or otherwise; or

(ii)contracts in the making of which the member or designated non-member was subject to the rules of the exchange or of an exchange to whose undertaking the exchange has succeeded whether by amalgama- tion, merger or otherwise; F171...

[F172(b)contracts entered into by the exchange, in its capacity as such, with a member of the exchange or with a recognised clearing house [F173or with a recognised CSD] or with another recognised investment exchange for the purpose of enabling the rights and liabilities of that member [F174or recognised body] under a transaction to be settled; and

(c)contracts entered into by the exchange with a member of the exchange or with a recognised clearing house [F173or with a recognised CSD] or with another recognised investment exchange for the purpose of providing central counterparty clearing services to that member [F174or recognised body].]

A “designated non-member” means a person in respect of whom action may be taken under the default rules of the exchange but who is not a member of the exchange.

[F175(2A)Where the exchange in question is a recognised overseas investment exchange, this Part does not apply to a contract that falls within paragraph (a) of subsection (2) (unless it also falls within subsection (3)).]]

[F176(2B)In relation to transactions which are cleared through a recognised central counterparty, this Part applies to—

(a)clearing member house contracts;

(b)clearing member client contracts;

(c)client trades, other than client trades excluded by subsection (2C) [F177or (2D)]; and

(d)contracts entered into by the recognised central counterparty with a recognised investment exchange [F178or with a recognised CSD] or a recognised clearing house for the purpose of providing central counterparty clearing services to [F179that recognised body].

(2C)A client trade is excluded by this subsection from subsection (2B)(c) if—

(a)the clearing member which is a party to the clearing member client contract corresponding to the client trade defaults; and

(b)the clearing member client contract is not transferred to another clearing member within the period specified for this purpose in the default rules of the recognised central counterparty.]

[F180(2D)A client trade is also excluded by this subsection from subsection (2B)(c) if—

(a)the client trade was entered into by a client in the course of providing indirect clearing services to an indirect client;

(b)the client defaults; and

(c)the clearing member client contract corresponding to the client trade is not transferred within—

(i)the period specified for this purpose in the default rules of the recognised central counterparty; or

(ii)if no such period is specified in the default rules of the recognised central counterparty, a period of 14 days beginning with the day on which proceedings in respect of the client’s insolvency are begun.]

[F181(3)In relation to a recognised clearing house [F182which is not a recognised central counterparty,] this Part applies to—

(a)contracts entered into by the clearing house, in its capacity as such, with a member of the clearing house or with a recognised investment exchange [F183or with a recognised CSD] or with another recognised clearing house for the purpose of enabling the rights and liabilities of that member [F184or recognised body] under a transaction to be settled; and

(b)contracts entered into by the clearing house with a member of the clearing house or with a recognised investment exchange [F185or with a recognised CSD] or with another recognised clearing house for the purpose of providing central counterparty clearing services to that member [F186or recognised body].]

[F187(3ZA)In relation to a recognised CSD, this Part applies to contracts entered into by the central securities depository with a member of the central securities depository or with a recognised investment exchange or with a recognised clearing house or with another recognised CSD for the purpose of providing authorised central securities depository services to that member or recognised body.]

[F188(3A)In this section “central counterparty clearing services” means—

(a)the services provided by a recognised investment exchange or a recognised clearing house to the parties to a transaction in connection with contracts between each of the parties and the investment exchange or clearing house (in place of, or as an alternative to, a contract directly between the parties),

(b)the services provided by a recognised clearing house to [F189a recognised body] in connection with contracts between them, or

(c)the services provided by a recognised investment exchange to [F190a recognised body] in connection with contracts between them.]

[F191(3B)The reference in subsection (2D)(c)(ii) to the beginning of insolvency proceedings is to—

(a)[F192the making of a bankruptcy application or] the presentation of a bankruptcy petition or a petition for sequestration of a client’s estate, or

(b)the application for an administration order or the presentation of a winding-up petition or the passing of a resolution for voluntary winding up, or

(c)the appointment of an administrative receiver.

(3C)In subsection (3B)(b) the reference to an application for an administration order is to be taken to include a reference to—

(a)in a case where an administrator is appointed under paragraph 14 or 22 of Schedule B1 to the Insolvency Act 1986 (appointment by floating charge holder, company or directors) following filing with the court of a copy of a notice of intention to appoint under that paragraph, the filing of the copy of the notice, and

(b)in a case where an administrator is appointed under either of those paragraphs without a copy of a notice of intention to appoint having been filed with the court, the appointment of the administrator.]

[F193(3D)In this Part “authorised central securities depository services” means, in relation to a recognised CSD—

(a)the core services listed in Section A of the Annex to the CSD regulation which that central securities depository is authorised to provide pursuant to Article 16 or 19(1)(a) or (c) of the CSD regulation;

(b)the non-banking-type ancillary services listed in or permitted under Section B of that Annex which that central securities depository is authorised to provide, including services notified under Article 19 of the CSD regulation; and

(c)the banking-type ancillary services listed in or permitted under Section C of that Annex which that central securities depository is authorised to provide pursuant to Article 54(2)(a) of the CSD regulation.]

(4)The Secretary of State may by regulations make further provision as to the contracts to be treated as “market contracts”, for the purposes of this Part, in relation to [F194a recognised body].

(5)The regulations may add to, amend or repeal the provisions of subsections [F195(2), (3), (3ZA) and (3D)] above.

Textual Amendments

F169S. 155(2)(2A) substituted for s. 155(2) by S.I. 1991/880, reg. 3

F170Words in s. 155(2)(a) inserted (11.8.1998) by S.I. 1998/1748, reg. 3(a)

F172S. 155(2)(b)(c) substituted for s. 155(2)(b) (15.6.2009) by The Financial Markets and Insolvency Regulations 2009 (S.I. 2009/853), regs. 1(1), 2(3)(a)

Commencement Information

I7S. 155 wholly in force at 25.4.1991. See s. 215 and S.I. 1991/488, art. 2(2); 1991/878, art. 2, Sch.

[F196155A.Qualifying collateral arrangements and qualifying property transfersU.K.

(1)In this Part—

(a)“qualifying collateral arrangements” means the contracts and contractual obligations to which this Part applies by virtue of subsection (2); and

(b)“qualifying property transfers” means the property transfers to which this Part applies by virtue of subsection (4).

(2)In relation to transactions which are cleared through a recognised central counterparty, this Part applies to any contracts or contractual obligations for, or arising out of, the provision of property as margin where—

(a)the margin is provided to a recognised central counterparty and is recorded in the accounts of the recognised central counterparty as an asset held for the account of a client, an indirect client, or a group of clients or indirect clients; or

(b)the margin is provided to a client or clearing member for the purpose of providing cover for exposures arising out of present or future client trades.

(3)In subsection (2)—

(a)“property” has the meaning given by section 436(1) of the Insolvency Act 1986 and

(b)the reference to a contract or contractual obligation for, or arising out of, the provision of property as margin in circumstances falling within paragraph (a) or (b) of that subsection includes a reference to a contract or contractual obligation of that kind which has been amended to reflect the transfer of a clearing member client contract or client trade.

(4)In relation to transactions which are cleared through a recognised central counterparty, this Part applies to—

(a)transfers of property made in accordance with Article 48(7) of the EMIR Level 1 Regulation;

[F197(aa)transfers of property made in accordance with Article 4(6) and (7) of the EMIR Level 2 Regulation or Article 4(6) and (7) of the MIFIR Level 2 Regulation;]

(b)transfers of property to the extent that they—

(i)are made by a recognised central counterparty to a non-defaulting clearing member instead of, or in place of, a defaulting clearing member;

(ii)represent the termination or close out value of a clearing member client contract which is transferred from a defaulting clearing member to a non-defaulting clearing member; and

(iii)are determined in accordance with the default rules of the recognised central counterparty.]

[F198(c)transfers of property to the extent that they—

(i)are made by a clearing member to a non-defaulting client or another clearing member instead of, or in place of, a defaulting client;

(ii)represent the termination or close out value of a client trade which is transferred from a defaulting client to another clearing member or a non-defaulting client; and

(iii)do not exceed the termination or close out value of the clearing member client contract corresponding to that client trade, as determined in accordance with the default rules of the recognised central counterparty.]

F199156. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .U.K.

Textual Amendments

F199S. 156 repealed (1.12.2001) by S.I. 2001/3649, arts. 1, 75(e)

157

(1)[F200A recognised body] shall give the [F201appropriate regulator] at least [F202three months] notice of any proposal to amend, revoke or add to its default rules; and the [F203regulator] may within [F202three months] from receipt of the notice direct [F204the recognised body] not to proceed with the proposal, in whole or in part.

[F205(1A)The appropriate regulator may, if it considers it appropriate to do so, agree a shorter period of notice and, in a case where it does so, any direction under this section must be given by it within that shorter period.]

(2)A direction under this section may be varied or revoked.

(3)Any amendment or revocation of, or addition to, the default rules of [F206a recognised body] in breach of a direction under this section is ineffective.

[F207(4)The appropriate regulator”—

(a)in relation to a recognised UK investment exchange, means the FCA, and

(b)in relation to a [F208recognised clearing house] [F209or a recognised CSD], means the Bank of England.]

Textual Amendments

Commencement Information

I8S. 157 wholly in force at 25.4.1991 see s. 215 and S.I. 1991/878, art. 2, Sch. (subject to savings in art. 3(1))

158 Modifications of the law of insolvency.E+W+S

[F210(1)The general law of insolvency has effect in relation to—

(a)market contracts,

(b)action taken under the rules of [F211a recognised body other than a recognised central counterparty], with respect to market contracts,

(c)action taken under the rules of a recognised central counterparty to transfer clearing member client contracts, or settle clearing member client contracts or clearing member house contracts, in accordance with the default rules of the recognised central counterparty,

(d)where clearing member client contracts transferred in accordance with the default rules of a recognised central counterparty were entered into by the clearing member [F212or client] as a principal, action taken to transfer F213... client trades, or groups of client trades, corresponding to those clearing member client contracts,

(e)action taken to transfer qualifying collateral arrangements in conjunction with a transfer of clearing member client contracts as mentioned in paragraph (c) or a transfer of client trades as mentioned in paragraph (d), and

(f)qualifying property transfers,

subject to the provisions of sections 159 to 165.]

(2)So far as those provisions relate to insolvency proceedings in respect of a person other than a defaulter, they apply in relation to—

[F214(a)proceedings in respect of a recognised investment exchange or a member or designated non-member of a recognised investment exchange,

(aa)proceedings in respect of a recognised clearing house or a member of a recognised clearing house, F215...]

[F216(ab)proceedings in respect of a recognised CSD or a member of a recognised CSD, and]

(b)proceedings in respect of a party to a market contract [F217other than a client trade which are] begun after [F218a recognised body] has taken action under its default rules in relation to a person party to the contract as principal,

but not in relation to any other insolvency proceedings, notwithstanding that rights or liabilities arising from market contracts fall to be dealt with in the proceedings.

(3)The reference in subsection (2)(b) to the beginning of insolvency proceedings is to—

(a)[F219the making of a bankruptcy application or] the presentation of a bankruptcy petition or a petition for sequestration of a person’s estate, or

[F220(b)the application for an administration order or the presentation of a winding-up petition or the passing of a resolution for voluntary winding up,]

(c)the appointment of an administrative receiver.

[F221(3A)In subsection (3)(b) the reference to an application for an administration order shall be taken to include a reference to—

(a)in a case where an administrator is appointed under paragraph 14 or 22 of Schedule B1 to the Insolvency Act 1986 (appointment by floating charge holder, company or directors) following filing with the court of a copy of a notice of intention to appoint under that paragraph, the filing of the copy of the notice, and

(b)in a case where an administrator is appointed under either of those paragraphs without a copy of a notice of intention to appoint having been filed with the court, the appointment of the administrator.]

(4)The Secretary of State may make further provision by regulations modifying the law of insolvency in relation to the matters mentioned in [F222paragraphs (a) to (d) of] subsection (1).

(5)The regulations may add to, amend or repeal the provisions mentioned in subsection (1), and any other provision of this Part as it applies for the purposes of those provisions, or provide that those provisions have effect subject to such additions, exceptions or adaptations as are specified in the regulations.

Textual Amendments

F214S. 158(2)(a)(aa) substituted for s. 158(2)(a) (15.6.2009) by The Financial Markets and Insolvency Regulations 2009 (S.I. 2009/853), regs. 1(1), 2(4)(a) (with reg. 1(2)(3))

F220S. 158(3)(b) substituted (15.9.2003) by 2002 c. 40, ss. 248, 279, Sch. 17 para. 44(a) (with s. 249(1)-(3)); S.I. 2003/2093, art. 2(1), Sch. 1 (subject to transitional provisions in arts. 3-8 (as amended by S.I. 2003/2332, art. 2))

F221S. 158(3A) inserted (15.9.2003) by 2002 c. 40, ss. 248, 279, Sch. 17 para. 44(b) (with s. 249(1)-(3)); S.I. 2003/2093, art. 2(1), Sch. 1 (subject to transitional provisions in arts. 3-8 (as amended by S.I. 2003/2332, art. 2))

Modifications etc. (not altering text)

C16S. 158(4)(5): certain functions made exercisable jointly by the Secretary of State and the Treasury (7.6.1992) by S.I. 1992/1315, art. 4, Sch. 2 para. 7 (with art. 6)

Commencement Information

I9S. 158 wholly in force; s. 158(4)(5) in force for certain purposes at 25.3.1991 and wholly in force at 25.4.1991 see s. 215(2) and S.I. 1991/488, art. 2(2); 1991/878, art. 2, Sch.

159[F223Proceedings of recognised bodies take precedence over insolvency procedures].E+W+S

(1)None of the following shall be regarded as to any extent invalid at law on the ground of inconsistency with the law relating to the distribution of the assets of a person on bankruptcy, winding up or sequestration, or [F224in the administration of a company or other body or] in the administration of an insolvent estate—

(a)a market contract,

(b)the default rules of [F225a recognised body],

(c)the rules of [F226a recognised body other than a recognised central counterparty] as to the settlement of market contracts not dealt with [F227under its default rules,]

[F228(d)the rules of a recognised central counterparty on which the recognised central counterparty relies to give effect to the transfer of a clearing member client contract, or the settlement of a clearing member client contract or clearing member house contract, in accordance with its default rules,

(e)a transfer of a clearing member client contract, or the settlement of a clearing member client contract or a clearing member house contract, in accordance with the default rules of a recognised central counterparty,

(f)where a clearing member client contract transferred in accordance with the default rules of a recognised central counterparty was entered into by the clearing member [F229or client] as principal, a transfer of [F230a client trade] or group of client trades corresponding to that clearing member client contract,

(g)a transfer of a qualifying collateral arrangement in conjunction with the transfer of clearing member client contract as mentioned in paragraph (e) or of a client trade as mentioned in paragraph (f), or

(h)a qualifying property transfer.]

(2)The powers of a relevant office-holder in his capacity as such, and the powers of the court under the M21Insolvency Act 1986[F231, the Bankruptcy (Scotland) Act [F2322016], Part 10 of the Building Societies Act 1986, Parts 2 and 3 of the Banking Act 2009 or under regulations made under section 233 of that Act,] shall not be exercised in such a way as to prevent or interfere with—

(a)the settlement in accordance with the rules of [F233a recognised body other than a recognised central counterparty] of a market contract not dealt with under its default rules, F234...

(b)any action taken under the default rules of [F235a recognised body other than a recognised central counterparty],

[F236(c)the transfer of a clearing member client contract, or the settlement of a clearing member client contract or a clearing member house contract, in accordance with the default rules of a recognised central counterparty,

(d)where a clearing member client contract transferred in accordance with the default rules of a recognised central counterparty was entered into by the clearing member [F237or client] as principal, the transfer of [F238a client trade] or group of client trades corresponding to that clearing member contract,

(e)the transfer of a qualifying collateral arrangement in conjunction with a transfer of a clearing member client contract as mentioned in paragraph (c), or a transfer of a client trade as mentioned in paragraph (d),

(f)any action taken to give effect to any of the matters mentioned in paragraphs (c) to (e), or

(g)any action taken to give effect to a qualifying property transfer.]

This does not prevent a relevant office-holder from afterwards seeking to recover any amount under section 163(4) or 164(4) or prevent the court from afterwards making any such order or decree as is mentioned in section 165(1) or (2) (but subject to subsections (3) and (4) of that section).

(3)Nothing in the following provisions of this Part shall be construed as affecting the generality of the above provisions.

(4)A debt or other liability arising out of a market contract which is the subject of default proceedings may not be proved in a winding up or bankruptcy [F239or in the administration of a company or other body], or in Scotland claimed in a winding up or sequestration [F239or in the administration of a company or other body], until the completion of the default proceedings.

A debt or other liability which by virtue of this subsection may not be proved or claimed shall not be taken into account for the purposes of any set-off until the completion of the default proceedings.

F240[(4A)However, prior to the completion of default proceedings—

(a)where it appears [F241to the convener] that a sum will be certified under section 162(1) to be payable, subsection (4) shall not prevent any proof or claim including or consisting of an estimate of that sum which has been lodged or, in Scotland, submitted, from being admitted or, in Scotland, accepted, for the purpose only of determining the entitlement of a creditor to vote [F242in a decision procedure]; and

(b)a creditor whose claim or proof has been lodged and admitted or, in Scotland, submitted and accepted, for the purpose of determining the entitlement of a creditor to vote [F243in a decision procedure] and which has not been subsequently wholly withdrawn, disallowed or rejected, is eligible as a creditor to be a member of a liquidation committee or, in bankruptcy proceedings in England and Wales, [F244or in the administration of a company or other body] a creditors’ committee.]

(5)For the purposes of [F245subsections (4) and (4A)] the default proceedings shall be taken to be completed in relation to a person when a report is made under section 162 stating the sum (if any) certified to be due to or from him.

Textual Amendments

F240S. 159 (4A) inserted by S.I. 1991/880, reg. 4(2)

F245Words in s. 159(5) substituted by S.I. 1991/880, reg. 4(3)

Commencement Information

I10S. 159 wholly in force at 25.4.1991 see s. 215(2) and S.I. 1991/878, art. 2, Sch.

Marginal Citations

160

(1)It is the duty of—

(a)any person who has or had control of any assets of a defaulter, and

(b)any person who has or had control of any documents of or relating to a defaulter,

to give [F246a recognised body] such assistance as it may reasonably require for the purposes of its default proceedings.

This applies notwithstanding any duty of that person under the enactments relating to insolvency.

(2)A person shall not under this section be required to provide any information or produce any document which he would be entitled to refuse to provide or produce on grounds of legal professional priviledge in proceedings in the High Court or on grounds of confidentiality as between client and professional legal adviser in proceedings in the Court of Session.

(3)Where original documents are supplied in pursuance of this section, [F247the recognised body] shall return them forthwith after the completion of the relevant default proceedings, and shall in the meantime allow reasonable access to them to the person by whom they were supplied and to any person who would be entitled to have access to them if they were still in the control of the person by whom they were supplied.

(4)The expenses of a relevant office-holder in giving assistance under this section are recoverable as part of the expenses incurred by him in the discharge of his duties; and he shall not be required under this section to take any action which involves expenses which cannot be so recovered, unless [F248the recognised body] undertakes to meet them.

There shall be treated as expenses of his such reasonable sums as he may determine in respect of time spent in giving the assistance [F249and for the purpose of determining the priority in which his expenses are payable out of the assets, sums in respect of time spent shall be treated as his remuneration and other sums shall be treated as his disbursements or, in Scotland, outlays.]

(5)The Secretary of State may by regulations make further provision as to the duties of persons to give assistance to [F250a recognised body] for the purposes of its default proceedings, and the duties of [F251the recognised body] with respect to information supplied to it.

The regulations may add to, amend or repeal the provisions of subsections (1) to (4) above.

(6)In this section “document” includes information recorded in any form.

Textual Amendments

F249Words in s. 160(4) added by S.I. 1991/880, Pt. III reg. 5

Modifications etc. (not altering text)

C17S. 160(5): (7.6.1992) certain functions made exercisable jointly by the Secretary of State and the Treasury by S.I. 1992/1315, art. 4, Sch. 2 para.7 (with art. 6).

Commencement Information

I11S. 160 wholly in force at 1.10.1991; s. 160(5) in force for certain purposes at 25.3.1991 see 215(2) and S.I. 1991/488, art. 2(2), s. 160 in force at 25.4.1991 with specified exceptions see S.I. 1991/878, art. 2, Sch. (subject to savings in art. 3(2)), s. 160 wholly in force at 1.10.1991 see S.I. 1991/2173, art. 2

161 Supplementary provisions as to default proceedings.E+W+S

(1)If the court is satisfied on an application by a relevant office-holder that a party to a market contract with a defaulter intends to dissipate or apply his assets so as to prevent the office-holder recovering such sums as may become due upon the completion of the default proceedings, the court may grant such interlocutory relief (in Scotland, such interim order) as it thinks fit.

(2)A liquidator[F252, administrator] or trustee of a defaulter or, in Scotland, a [F253trustee in the sequestration of the] estate of the defaulter shall not—

(a)declare or pay any dividend to the creditors, or

(b)return any capital to contributories,

unless he has retained what he reasonably considers to be an adequate reserve in respect of any claims arising as a result of the default proceedings of [F254the recognised body] concerned.

(3)The court may on an application by a relevant office-holder make such order as it thinks fit altering or dispensing from compliance with such of the duties of his office as are affected by the fact that default proceedings are pending or could be taken, or have been or could have been taken.

(4)Nothing in [F255section 126, 128, 130, 185 or 285 of, or paragraph [F25640, 41,] 42 or 43 ([F257including those paragraphs as applied by paragraph 44]) of Schedule B1 to, the Insolvency Act 1986] (which restrict the taking of certain legal proceedings and other steps), and nothing in any rule of law in Scotland to the like effect as the said section 285, in the Bankruptcy (Scotland) Act M22 [F2582016] or in the Debtors (Scotland) Act M23 as to the effect of sequestration, shall affect any action taken by [F259a recognised body] for the purpose of its default proceedings.

Textual Amendments

F255Words in s. 161(4) substituted (15.9.2003) by Enterprise Act 2002 (c. 40), ss. 248, 279, Sch. 17 para. 45 (with savings in s. 249(1)-(3)); S.I. 2003/2093, art. 2(1), Sch. 1 (subject to transitional provisions in arts. 3-8 (as amended by S.I. 2003/2332, art. 2))

Modifications etc. (not altering text)

C18S. 161 amended by S.I. 1991/880, reg. 19(1)

C19S. 161(4) (as it has effect by virtue of Enterprise Act 2002 (c. 40), s. 249(1)) modified (15.6.2009) by The Financial Markets and Insolvency Regulations 2009 (S.I. 2009/853), regs. 1(1), 2(6)(c) (with reg. 1(2)(3))

Commencement Information

I12S. 161 wholly in force at 25.4.1991 see s. 215 and S.I. 1991/878, art. 2, Sch.

Marginal Citations

162 Duty to report on completion of default procedings.U.K.

(1)F260Subject to subsection (1A), [F261a recognised body] shall, on the completion of proceedings under its default rules, report to the [F262appropriate regulator] on its proceedings stating in respect of each creditor or debtor the sum [F263or sums] certified by them to be payable from or to the defaulter or, as the case may be, the fact that no sum is payable.

F264(1A)A recognised overseas investment exchange or recognised overseas clearing house shall not be subject to the obligation under subsection (1) unless it has been notified by the [F265appropriate regulator] that a report is required for the purpose of insolvency proceedings in any part of the United Kingdom.

[F266(1B)The report under subsection (1) need not deal with a clearing member client contract which has been transferred in accordance with the default rules of a recognised central counterparty.]

(2)[F267The recognised body] may make a single report or may make reports from time to time as proceedings are completed with respect to the transactions affecting particular persons.

(3)[F268The recognised body] shall apply a copy of every report under this section to the defaulter and to any relevant office-holder acting in relation to him or to his estate.

(4)When a report under this section is received by the [F269[F270appropriate regulator], it] shall publish notice of that fact in such manner as [F271it] thinks appropriate for bringing [F272the report] to the attention of creditors and debtors of the defaulter.

(5)[F273A recognised body] shall make available for inspection by a creditor or debtor of the defaulter so much of any report by it under this section as relates to the sum (if any) certified to be due or from him or to the method by which that sum was determined.

(6)Any such person may require [F274the recognised body], on payment of such reasonable fee as [F274the recognised body] may determine, to provide him with a copy of any part of a report which he is entitled to inspect.

[F275(7)“The appropriate regulator”—

(a)in relation to a recognised investment exchange or a recognised overseas investment exchange, means the FCA, and

(b)in relation to a [F276recognised CSD, a] recognised clearing house or a recognised overseas clearing house, means the Bank of England.]

Textual Amendments

F260Words in s. 162(1) inserted by S.I. 1991/880, reg. 6(2)

F264S. 162(1A) inserted by S.I. 1991/880, reg. 6(3)

F269Words in s. 162(4) substituted (1.12.2001) by S.I. 2001/3649, arts. 1, 80(4)(a)

F271Word in s. 162(4) substituted (1.12.2001) by S.I. 2001/3649, arts. 1, 80(4)(b)

F272Words in s. 162(4) substituted (1.12.2001) by S.I. 2001/3649, arts. 1, 80(4)(c)

Modifications etc. (not altering text)

C20S. 162 applied (with modifications) (E.W.S.) (11.12.1999) by S.I. 1999/2979, reg. 15(1)

Commencement Information

I13S. 162 wholly in force at 1.10.1991; s. 162 in force for certain purposes at 25.4.1991 see s. 215 and S.I. 1991/878, art. 2, Sch. and wholly in force at 1.10.1991 see s. 215 and S.I. 1991/2173, art. 2

163 Net sum payable on completion of default proceedings.E+W+S

[F277(1)The following provisions apply with respect to a net sum certified by [F278a recognised body] under its default rules to be payable by or to a defaulter.]

(2)If, in England and Wales, a bankruptcy[F279, winding-up or administration order has been made], or a resolution for voluntary winding-up has been passed, the debt—

(a)is provable in the bankruptcy[F280, winding up or administration] or, as the case may be, is payable to the relevant office-holder, and

(b)shall be taken into account, where appropriate, under section 323 of the Insolvency Act M241986 (mutual dealings and set-off) or the corresponding provision applicable in the case of winding up [F281or administration],

in the same way as a debt before the commencement of the bankruptcy, the date on which the body corporate goes into liquidation (within the meaning of section 247 of the Insolvency Act 1986)[F282, or enters administration] or, in the case of a partnership, the date of the winding-up order [F283or the date on which the partnership enters administration].

(3)If, in Scotland, an award of sequestration or a winding-up [F284or administration] order has been made, or a resolution for voluntary winding up has been passed, the debt—

(a)may be claimed in the sequestration[F285, winding up or administration] or, as the case may be, is payable to the relevant office-holder, and

(b)shall be taken into account for the purposes of any rule of law relating to set-off applicable in sequestration[F286, winding up or administration],

in the same way as a debt due before the date of sequestration (within the meaning of section [F28722(7) of the Bankruptcy (Scotland) Act 2016] ) or the commencement of the winding up (within the meaning of section 129 of the Insolvency Act 1986) [F288or the date on which the body corporate enters administration].

[F289(3A)In subsections (2) and (3), a reference to the making of an administration order shall be taken to include a reference to the appointment of an administrator under—

(a)paragraph 14 of Schedule B1 to the Insolvency Act 1986 (appointment by holder of qualifying floating charge); or

(b)paragraph 22 of that Schedule (appointment by company or directors).]

(4)However, where (or to the extent that) a sum is taken into account by virtue of subsection (2)(b) or (3)(b) which arises from a contract entered into at a time when the creditor had notice—

(a)that [F290a bankruptcy application or] a bankruptcy petition or, in Scotland, a petition for sequestration was pending, F291...

(b)that [F292a statement as to the affairs of the company had been made out and sent under section 99] of the Insolvency Act M251986 or that a winding-up petition was pending, [F293or]

[F294(c)that an application for an administration order was pending or that any person had given notice of intention to appoint an administrator,]

the value of any profit to him arising from the sum being so taken into account (or being so taken into account to that extent) is recoverable from him by the relevant office-holder unless the court directs otherwise.

(5)Subsection (4) does not apply in relation to a sum arising from a contract effected under the default rules of [F295a recognised body].

(6)Any sum recoverable by virtue of subsection (4) ranks for priority, in the event of the insolvency of the person from whom it is due, immediately before preferential or, in Scotland, preferred debts.

Textual Amendments

Modifications etc. (not altering text)

C21S. 163 amended by S.I. 1991/880, reg. 19(1)

S. 163 applied (with modifications) (11.12.1999) by S.I. 1999/2979, reg. 15(1)

C22S. 163(4)-(6) excluded in part (11.12.1999) by S.I. 1999/2979, reg. 21(2)(a)

Commencement Information

I14S. 163 wholly in force at 25.4.1991 see s. 215 and S.I. 1991/878, art. 2, Sch.

Marginal Citations

164 Disclaimer of property, rescission of contracts, &c.E+W+S

(1)Sections 178, 186, 315 and 345 of the Insolvency Act 1986 (power to disclaim onerous property and court’s power to order rescission of contracts, &c.) do not apply in relation to—

(a)a market contract, F296...

[F297(aa)a qualifying collateral arrangement,

(ab)a transfer of a clearing member client contract, a client trade or a qualifying collateral arrangement, as mentioned in paragraphs (c) to (e) of section 158(1),

(ac)a qualifying property transfer, or]

(b)a contract effected by [F298the recognised body] for the purpose of realising property provided as margin in relation to market contracts [F299or as default fund contribution].

In the application of this subsection in Scotland, the reference to sections 178, 315 and 345 shall be construed as a reference to any rule of law having the like effect as those sections.

(2)In Scotland, a [F300trustee in the sequestration of the] estate of a defaulter or a liquidator is bound by any market contract to which that defaulter is a party and by any contract as is mentioned in subsection (1)(b) above notwithstanding section [F301110 of the Bankruptcy (Scotland) Act 2016] or any rule of law to the like effect applying in liquidations.

(3)Sections 127 and 284 of the Insolvency Act 1986 (avoidance of property dispositions effected after commencement of winding up [F302, submission of bankruptcy application or] or presentation of bankruptcy petition), and section [F30387(4) of the Bankruptcy (Scotland) Act 2016] (effect of dealing with debtor relating to estate vested in F304... trustee), do not apply to—

(a)a market contract, or any disposition of property in pursuance of such a contract,

(b)the provision of margin in relation to market contracts,

[F305(ba)the provision of default fund contribution to [F306the recognised body],]

[F307(bb)a qualifying collateral arrangement,

(bc)a transfer of a clearing member client contract, a client trade or a qualifying collateral arrangement, as mentioned in paragraphs (c) to (e) of section 158(1),

(bd)a qualifying property transfer]

(c)a contract effected by [F306the recognised body] for the purpose of realising property provided as margin in relation to a market contract [F308or as default fund contribution], or any disposition of property in pursuance of such a contract, or

(d)any disposition of property in accordance with the rules of [F306the recognised body] as to the application of property provided as margin [F309or as default fund contribution].

(4)However, where—

(a)a market contract is entered into by a person who has notice that [F310a bankruptcy application has been submitted or] a petition has been presented for the winding up or bankruptcy or sequestration of the estate of the other party to the contract, or

(b)margin in relation to a market contract [F311or default fund contribution] is accepted by a person who has notice that [F312such an application has been made or petition presented] in relation to the person by whom or on whose behalf the margin [F313or default fund contribution] is provided,

the value of any profit to him arising from the contract or, as the case may be, the amount or value of the margin [F313or default fund contribution] is recoverable from him by the relevant office-holder unless the court directs otherwise.

[F314(5)Subsection (4)(a) does not apply where the person entering into the contract is [F315a recognised body] acting in accordance with its rules, or where the contract is effected under the default rules of such [F316a recognised body]; but subsection (4)(b) applies in relation to the provision of—

(a)margin in relation to any such contract, unless the contract has been transferred in accordance with the default rules of the central counterparty, or

(b)default fund contribution.]

(6)Any sum recoverable by virtue of subsection (4) ranks for priority, in the event of the insolvency of the person from whom it is due, immediately before preferential or, in Scotland, preferred debts.

Textual Amendments

Modifications etc. (not altering text)

C23S. 164 amended by S.I. 1991/880, reg. 19(1)

C24S. 164(4)-(6) excluded in part (11.12.1999) by S.I. 1999/2979, reg. 21(2)(b)

Commencement Information

I15S. 164 wholly in force at 25.4.1991 see s. 215 and S.I. 1991/878, art. 2, Sch.

165 Adjustment of prior transactions.E+W+S

(1)No order shall be made in relation to a transaction to which this section applies under—

(a)section 238 or 339 of the Insolvency Act 1986 (transactions at an under-value),

(b)section 239 or 340 of that Act (preferences), or

(c)section 423 of that Act (transactions defrauding creditors).

(2)As respects Scotland, no decree shall be granted in relation to any such transaction—

(a)under section [F31798 or 99 of the Bankruptcy (Scotland) Act 2016] or section 242 or 243 of the Insolvency Act 1986 (gratuitous alienations and unfair preferences), or

(b)at common law on grounds of gratuitous alienations or fraudulent preferences.

(3)This section applies to—

(a)a market contract to which a [F318recognised body] is a party or which is entered into under its default rules, F319...

[F320(ab)a market contract to which this Part applies by virtue of section 155(2B), and

(b)a disposition of property in pursuance of a market contract referred to in paragraph (a) or (ab).]

(4)Where margin is provided in relation to a market contract and (by virtue of subsection (3)(a)[F321, (3)(ab)] or otherwise) no such order or decree as is mentioned in subsection (1) or (2) has been, or could be, made in relation to that contract, this section applies to—

(a)the provision of the margin,

[F322(ab)a qualifying collateral arrangement,]

(b)any contract effected by [F323the recognised body] in question for the purpose of realising the property provided as margin, and

(c)any disposition of property in accordance with the rules of [F324the recognised body] [F325in question] as to the application of property provided as margin.

[F326(5)This section also applies to—

(a)the provision of default fund contribution to a [F327recognised body],

(b)any contract effected by a [F328recognised body] for the purpose of realising the property provided as default fund contribution, F329...

(c)any disposition of property in accordance with the rules of the [F330recognised body] as to the application of property provided as default fund [F331contribution,]

[F332(d)a transfer of a clearing member client contract, a client trade or a qualifying collateral arrangement as mentioned in paragraphs (c) to (e) of section 158(1), and

(e)a qualifying property transfer.]]

Textual Amendments

Commencement Information

I16S. 165 wholly in force at 25.4.1991 see s. 215 and S.I. 1991/878, art. 2, Sch.

166 Powers F333... to give directions.U.K.

(1)The powers conferred by this section are exercisable in relation to a recognised UK investment exchange or [F334recognised clearing house] [F335or recognised CSD].

(2)Where in any case [F336a recognised body] has not taken action under its default rules—

(a)if it appears to the [F337appropriate regulator] that it could take action, [F338the [F339regulator]] may direct it to do so, and

(b)if it appears to the [F340appropriate regulator] that it is proposing to take or may take action, [F338the [F341regulator]] may direct it not to do so.

(3)Before giving such a direction the [F342appropriate regulator] shall consult the [F343recognised body] in question; and [F344it] shall not give a direction unless [F344it] is satisfied, in the light of that consultation—

(a)in the case of a direction to take action, that failure to take action would involve undue risk to investors or other participants in the market, F345...

(b)in the case of a direction not to take action, that the taking of action would be premature or otherwise undesirable in the interests of investors or other participants in the market,

[F346(c)in either case, that the direction is necessary having regard to the public interest in the stability of the financial system of the United Kingdom, or

(d)in either case, that the direction is necessary—

(i)to facilitate a proposed or possible use of a power under Part 1 of the Banking Act 2009 (special resolution regime), or

(ii)in connection with a particular exercise of a power under that Part.]

[F347(3A)The appropriate regulator may give a direction to a relevant office-holder appointed in respect of a defaulting clearing member to take any action, or refrain from taking any action, if the direction is given for the purposes of facilitating—

(a)the transfer of a clearing member client contract, a client trade or a qualifying collateral arrangement, or

(b)a qualifying property transfer.

(3B)The relevant office-holder to whom a direction is given under subsection (3A)—

(a)must comply with the direction notwithstanding any duty on the relevant office-holder under any enactment relating to insolvency, but

(b)is not required to comply with the direction given if the value of the clearing member’s estate is unlikely to be sufficient to meet the office-holder’s reasonable expenses of complying.

(3C)The expenses of the relevant office-holder in complying with a direction of the regulator under subsection (3A) are recoverable as part of the expenses incurred in the discharge of the office-holder’s duties.]

(4)A direction shall specify the grounds on which it is given.

(5)A direction not to take action may be expressed to have effect until the giving of a further direction (which may be a direction to take action or simply revoking the earlier direction).

(6)No direction shall be given not to take action if, in relation to the person in question—

(a)a bankruptcy order or an award of sequestration of his estate has been made, or an interim receiver or interim trustee has been appointed, or

(b)a winding up order has been made, a resolution for voluntary winding up has been passed or an administrator, administrative receiver or provisional liquidator has been appointed;

and any previous direction not to take action shall cease to have effect on the making or passing of any such order, award or appointment.

(7)Where [F348a recognised body] has taken or been directed to take action under its default rules, the [F349appropriate regulator] may direct it to do or not to do such things (being things which it has power to do under its default rules) as are specified in the direction.

F350. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F351(7A)Where the [F352recognised body] is acting in accordance with a direction under subsection (2)(a) that was given only by virtue of paragraph (a) of subsection (3), the appropriate regulator shall not give a direction under subsection (7) unless it is satisfied that the direction under that subsection will not impede or frustrate the proper and efficient conduct of the default proceedings.

(7B)Where the [F353recognised body] has taken action under its default rules without being directed to do so, the appropriate regulator shall not give a direction under subsection (7) unless—

(a)it is satisfied that the direction under that subsection will not impede or frustrate the proper and efficient conduct of the default proceedings, or

(b)it is satisfied that the direction is necessary—

(i)having regard to the public interest in the stability of the financial system of the United Kingdom,

(ii)to facilitate a proposed or possible use of a power under Part 1 of the Banking Act 2009 (special resolution regime), or

(iii)in connection with a particular exercise of a power under that Part.]

(8)A direction under this section is enforceable, on the application of the [F354regulator which gave the direction], by injunction or, in Scotland, by an order under section 45 of the M26Court of Session Act 1988; and where [F355a recognised body] [F356or a relevant office-holder] has not complied with a direction, the court may make such order as it thinks fit for restoring the position to what it would have been if the direction had been complied with.

[F357(9)“The appropriate regulator”—

(a)in relation to a recognised UK investment exchange, means the FCA, and

(b)in relation to a [F358recognised CSD, a] [F359recognised clearing house] [F360or a defaulting clearing member], means the Bank of England.]

Textual Amendments

F333Words in s. 166 heading omitted (1.4.2013) by virtue of Financial Services Act 2012 (c. 21), ss. 111(9), 122(3) (with Sch. 20); S.I. 2013/423, art. 3, Sch.

F337Words in s. 166(2)(a) substituted (1.4.2013) by Financial Services Act 2012 (c. 21), ss. 111(2)(a), 122(3) (with Sch. 20); S.I. 2013/423, art. 3, Sch.

F338Words in s. 166(2)(a)(b) substituted (1.12.2001) by S.I. 2001/3649, arts. 1, 81(2)(b)

F339Word in s. 166(2)(a) substituted (1.4.2013) by Financial Services Act 2012 (c. 21), ss. 111(2)(b), 122(3) (with Sch. 20); S.I. 2013/423, art. 3, Sch.

F340Words in s. 166(2)(b) substituted (1.4.2013) by Financial Services Act 2012 (c. 21), ss. 111(3)(a), 122(3) (with Sch. 20); S.I. 2013/423, art. 3, Sch.

F341Word in s. 166(2)(b) substituted (1.4.2013) by Financial Services Act 2012 (c. 21), ss. 111(3)(b), 122(3) (with Sch. 20); S.I. 2013/423, art. 3, Sch.

F342Words in s. 166(3) substituted (1.4.2013) by Financial Services Act 2012 (c. 21), ss. 111(4)(a), 122(3) (with Sch. 20); S.I. 2013/423, art. 3, Sch.

F344Words in s. 166(3) substituted (1.12.2001) by S.I. 2001/3649, arts. 1, 81(3)(b)

F345Word in s. 166(3) omitted (1.4.2013) by virtue of Financial Services Act 2012 (c. 21), ss. 111(4)(b), 122(3) (with Sch. 20); S.I. 2013/423, art. 3, Sch.

F349Words in s. 166(7) substituted (1.4.2013) by Financial Services Act 2012 (c. 21), ss. 111(5)(a), 122(3) (with Sch. 20); S.I. 2013/423, art. 3, Sch.

F350Words in s. 166(7) omitted (1.4.2013) by virtue of Financial Services Act 2012 (c. 21), ss. 111(5)(b), 122(3) (with Sch. 20); S.I. 2013/423, art. 3, Sch.

F354Words in s. 166(8) substituted (1.4.2013) by Financial Services Act 2012 (c. 21), ss. 111(7), 122(3) (with Sch. 20); S.I. 2013/423, art. 3, Sch.

Modifications etc. (not altering text)

Commencement Information

I17S. 166 wholly in force at 1.10.1991; s. 166 in force for certain purposes at 25.4.1991 see s. 215 and S.I. 1991/878, art. 2, Sch. (subject to savings in art. 3(2)) and wholly in force at 1.10.1991 see S.I. 1991/2173, art. 2.

Marginal Citations

167 Application to determine whether default proceedings to be taken.U.K.

[F361(1)This section applies where a relevant insolvency event has occurred in the case of—

(a)a recognised investment exchange or a member or designated non-member of a recognised investment exchange,F362...

(b)a recognised clearing house or a member of a recognised clearing house[F363, F364...

[F365(ba)a recognised CSD or a member of a recognised CSD, or]

(c)a client which is providing indirect clearing services to an indirect client.]

[F366The person referred to in paragraphs (a) to (c)] in whose case a relevant insolvency event has occurred is referred to below as “the person in default”.

(1A)For the purposes of this section a “relevant insolvency event” occurs where—

(a)a bankruptcy order is made,

(b)an award of sequestration is made,

(c)an order appointing an interim receiver is made,

(d)an administration or winding up order is made,

(e)an administrator is appointed under paragraph 14 of Schedule B1 to the Insolvency Act 1986 (appointment by holder of qualifying floating charge) or under paragraph 22 of that Schedule (appointment by company or directors),

(f)a resolution for voluntary winding up is passed, or

(g)an order appointing a provisional liquidator is made.

(1B)Where in relation to a person in default [F367a recognised body] (“[F368the responsible recognised body]”)—

(a)has power under its default rules to take action in consequence of the relevant insolvency event or the matters giving rise to it, but

(b)has not done so,

a relevant office-holder appointed in connection with or in consequence of the relevant insolvency event may apply to the [F369appropriate regulator].]

(2)The application shall specify [F370the responsible recognised body] and the grounds on which it is made.

(3)On receipt of the application the [F371appropriate regulator] shall notify [F372the responsible recognised body], and unless within three business days after the day on which the notice is received [F372the responsible recognised body]

(a)takes action under its default rules, or

(b)notifies the [F371appropriate regulator] that it proposes to do so forthwith,

then, subject as follows, the provisions of sections 158 to 165 above do not apply in relation to market contracts to which [F373