Financial Services (Banking Reform) Act 2013

SCHEDULE 6 Conduct of FMI administration

Section 121 1 The following provisions of this Schedule provide for— (a) the general powers and duties of FMI administrators (by application of provisions about administrators), and (b) the general process and effects of FMI administration (by application of provisions about administration). 2 The provisions set out in the Tables apply in relation to FMI administration as in relation to administration, with— (a) the modifications set out in paragraph 3, (b) any other modification specified in the Tables, and (c) any other necessary modification. 3 The modifications are that— (a) a reference to the administrator is a reference to the FMI administrator, (b) a reference to administration is a reference to FMI administration, (c) a reference to an administration application is a reference to an FMI administration application, (d) a reference to an administration order is a reference to an FMI administration order, (e) except where otherwise specified in Table 2, a reference to a company is a reference to the infrastructure company, and (f) a reference to the purpose of administration (other than the reference in paragraph 111(1) of Schedule B1) is a reference to the objective in section 115. 4 Powers conferred by this Part of this Act and by the 1986 Act (as applied) are in addition to, and not in restriction of, any existing powers of instituting proceedings against any contributory or debtor of an infrastructure company, or the estate of any contributory or debtor, for the recovery of any call or other sum. 5 A reference in an enactment or other document to anything done under a provision applied by this Part of this Act includes a reference to the provision as applied. TABLE 1 OF APPLIED PROVISIONS SCHEDULE B1 TO THE INSOLVENCY ACT 1986 Provision of Schedule B1 | Subject | Modification Para. 40(1)(a) | Dismissal of pending winding-up petition Para. 41 | Dismissal of administrative or other receiver Para. 42 | Moratorium on insolvency proceedings | Ignore sub-paras. (4) and (5). Para. 43 | Moratorium on other legal process Para. 44(1)(a) and (5) | Interim moratorium Para. 46 | Announcement of appointment | Ignore sub-para. (6)(b) and (c). Paras. 47 and 48 | Statement of affairs Para. 49 | Administrator's proposals | (a) The administrator must obtain the approval of the Bank of England to any proposals under sub-para. (1). (b) Treat the reference in sub-para. (2)(b) to the objective mentioned in para. 3(1)(a) or (b) as a reference to the objective in section 115 of this Act. (c) Ignore sub-para. (3)(b). Para. 59 | General powers Para. 60 and Schedule 1 | General powers | The exercise of powers under Schedule 1 is subject to section 115 of this Act. Para. 61 | Directors Para. 62 | Power to call meetings of creditors Para. 63 | Application to court for directions | (a) Before making an application in reliance on this paragraph the FMI administrator must give notice to the Bank of England, which is to be entitled to participate in the proceedings. (b) In making directions the court must have regard to the objective in section 115 of this Act. Para. 64 | Management powers Para. 65 | Distribution to creditors Para. 66 | Payments Para. 67 | Taking custody of property Para. 68 | Management | (a) Ignore sub-paras. (1) and (3). (b) The Bank of England may apply to the court for the variation or revocation of any directions given by the court. Para. 69 | Agency Para. 70 | Floating charges Para. 71 | Fixed charges Para. 72 | Hire-purchase property Para. 73 | Protection for secured and preferential creditors Para. 74 | Challenge to administrator's conduct | For sub-para. (2) there is to be taken to be substituted— (2) Where a company is in FMI administration, a creditor or member of the company may apply to the court claiming that the FMI administrator is conducting himself or herself in a manner preventing the achievement of the objective of the FMI administration as quickly and efficiently as is reasonably practicable. Para. 75 | Misfeasance | In addition to applications that may anyway be made under para. 75, an application may be made by the FMI administrator or the Bank of England. Para. 79 | Court ending administration on application of administrator | For sub-paras. (1) to (3) there are to be taken to be substituted— (1) On an application made by a person mentioned in sub-paragraph (2), the court may provide for the appointment of an FMI administrator of a company to cease to have effect from a specified time. (2) The persons who may apply to the court under sub-paragraph (1) are— (a) the Bank of England; (b) with the consent of the Bank, the FMI administrator. Para. 84 | Termination: no more assets for distribution Para. 85 | Discharge of administration order Para. 86 | Notice to Companies Registrar of end of administration Para. 87 | Resignation | An FMI administrator may not resign under para. 87 without giving 28 days' notice of the intention to do so to the Bank of England. Para. 88 | Removal | An application for an order removing an FMI administrator from office may be made only by or with the consent of the Bank of England. Para. 89 | Disqualification | The notice under sub-para. (2) must be given to the Bank of England. Paras. 90 and 91 | Replacement | (a) Para. 91(1) applies as if the only person who could make an application were the Bank of England. (b) Ignore para. 91(2). Para. 98 | Discharge | Ignore sub-paras. (2)(b) and (ba) , (3) and (3A) . Para. 99 | Vacation of office: charges and liabilities | In the application of sub-para. (3), payments may be made only— in accordance with directions of the Bank of England, and if the Bank is satisfied that they will not prejudice the objective in section 115 of this Act. Paras. 100 to 103 | Joint administrators | An application under para. 103 may be made only by the Bank of England. Para. 104 | Validity Para. 106 (and section 430 and Schedule 10) | Fines Paras. 107 to 109 | Extension of time limits Para. 110 | Amendment of provisions about time | An order under para. 110 may amend a provision of the Schedule as it applies by virtue of this Act (whether or not in the same way as it amends the provision as it applies otherwise). Para. 111 | Interpretation Paras. 112 to 116 | Scotland TABLE 2 OF APPLIED PROVISIONS OTHER PROVISIONS OF THE INSOLVENCY ACT 1986 Section | Subject | Modification or comment Section 176ZB | Application of proceeds of office-holder claims Section 233 | Utilities Section 234 | Getting in company's property Section 235 | Duty to co-operate with office-holder Section 236 | Inquiry into company's dealings Section 237 | Section 236: enforcement by court Section 238 | Transactions at an undervalue (England and Wales) Section 239 | Preferences (England and Wales) Section 240 | Ss. 238 and 239: relevant time Section 241 | Orders under ss. 238 and 239 | (a) In considering making an order in reliance on section 241 the court must have regard to the objective in section 115 of this Act. (b) Ignore subsections (2A)(a) and (3) to (3C). Section 242 | Gratuitous alienations (Scotland) Section 243 | Unfair preferences (Scotland) | In considering the grant of a decree under subsection (5) the court must have regard to the objective in section 115 of this Act. Section 244 | Extortionate credit transactions Section 245 | Avoidance of floating charges Section 246 | Unenforceability of liens Sections 246ZA to 246ZC | Administration: penalisation of directors etc Section 246ZD | Power to assign certain causes of action Sections 246ZE and 246ZF | Decisions by creditors (company insolvency) Section 246C | Creditors’ ability to opt out of receiving certain notices Section 248A | Meaning of “opted-out creditor” Sections 386 and 387, and Schedule 6 (and Schedule 4 to the Pension Schemes Act 1993) | Preferential debts Section 389 | Offence of acting without being qualified | Treat references to acting as an insolvency practitioner as references to acting as an FMI administrator. Sections 390 to 391T | Authorisation and regulation of insolvency practitioners | (a) In section 390 treat references to acting as an insolvency practitioner as references to acting as an FMI administrator. (b) For subsection (2) of that section there is to be taken to be substituted— “(2)A person is not qualified to act as an FMI administrator at any time unless at that time the person is fully authorised to act as an insolvency practitioner or partially authorised to act as an insolvency practitioner only in relation to companies.”. (c) An order under section 391 has effect in relation to any provision applied for the purposes of FMI administration. (d) In sections 390A, 390B(1) and (3), 391O(1)(b) and 391R(3)(b), in a reference to authorisation or permission to act as an insolvency practitioner in relation to (or only in relation to) companies the reference to companies has effect without the modification in paragraph 3(e) of this Schedule. (e) In sections 391Q(2)(b) and 391S(3)(e) the reference to a company has effect without the modification in paragraph 3(e) of this Schedule. Sections 423 to 425 | Transactions defrauding creditors | In considering granting leave under section 424(1) or making an order in reliance on section 425, the court must have regard to the objective in section 115 of this Act. Sections 430 to 432 and Schedule 10 | Offences 6 (1) The Treasury may by order amend this Schedule so as to make further modifications. (2) The further modifications that may be made are confined to such modifications of— (a) the 1986 Act, or (b) other enactments passed or made before this Act that relate to insolvency or make provision by reference to anything that is or may be done under the 1986 Act, as the Treasury consider appropriate in relation to any provision made by or under this Part of this Act. (3) An order under this paragraph may also make modifications of the provisions of this Schedule.