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BANKRUPTCY AND INSOLVENCY (CORPORATE INSOLVENCY) vol 3(3)

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BANKRUPTCY AND INSOLVENCY (CORPORATE INSOLVENCY) vol 3(3)

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About this title—authors, overview

Commentary

1 Corporate insolvency: formal procedures

2 Legislation amending the Insolvency Act 1986

3 Legislative changes introduced by the Insolvency (Amendment) Rules 2010

4 The EC Regulation on insolvency proceedings (2002), the Recast EU Regulation on insolvency proceedings (2015) and the impact of Brexit

5 UNCITRAL Model Law and Cross-Border Insolvency Regulations 2006

6 Application of the Cross-Border Insolvency Regulations 2006

7 Court procedure in insolvency

8 Insolvency practitioners

9 The Insolvency (England and Wales) Rules 2016

10 Abolition of statutory forms

11 Consolidation of provisions to reduce repetition

12 Main specific changes

13 Decision-making: abolition of meetings in insolvency procedure

14.1 Availability of deemed consent procedure

14.2 Notice requirements

14.3 Consequences of objection by creditors

15 Choice of procedure

16 Creditors’ requirement for a physical meeting

17 Presumption that procedure duly initiated and conducted

18.1 Allowing creditors to opt out of communications

18.2 Encouragement of email communications

18.3 Use of websites as a means of communication with creditors

19.1 Wrongful trading

19.2 Fraudulent trading

19.3 Fiduciary duties extending to interests of creditors

19.4 Disqualification of directors

20 Company voluntary arrangements (‘CVAs’)

21 Outline of the Insolvency Act 1986 Part I

22 No requirement of insolvency

23 The legal basis and effect of the arrangement

24 Notice to creditors

25 Secured creditors

26 Preferential creditors

27 Overview

28 Directors’ proposal

29 Statement of affairs

30 False representations by officers of the company

31 The nominee’s report to the court

32 Consideration of the proposal

33 Form of notice to creditors

34 Creditors: requisition of a physical meeting

35 Form of notice calling meeting of members

36 Proxy form

37 Notice of members’ meeting and attendance of officers

38 Proposal by administrator or liquidator

39 Overview

40 Decisions of creditors’ and members’ meeting

41 Adjournments

42 Voting in a creditors’ decision

43 Votes of connected persons

44 Appeal on chair’s decision as to creditor’s voting rights

45 Voting at the company’s meeting

46 Effect of irregularity in decision procedure/meeting

47 Challenging decisions

48 Overview

49 Report of meetings

50 Supervisor’s accounts and report

51 Powers of the court

52 Variation upon failure of arrangement

53 Winding up following failure of the arrangement

54 Fees and expenses

55 Provision by nominee or supervisor of information about time spent on a proposal or voluntary arrangement

56 Completion or termination of the arrangement by full performance

57 Administration

58 Administrator

59 Overview of administration and administrative receivership

60 Relationship to a ‘rescue culture’

61.1 Voluntary arrangements

61.2 Compulsory and voluntary winding up

61.3 Administrative receivership

62 Practical objects of administration

63 Pre-administration costs

64 Insolvency

65.1 Overview

65.2 First object: rescuing the company as a going concern

65.3 Second object: achieving a better result for the company’s creditors as a whole than would be likely if the company were wound up (without first being in administration)

65.4 Third object: realising property in order to make a distribution to one or more secured or preferential creditors

66 Is a court application necessary?

67 General court procedure in insolvency

68 Particular procedure in administration

69 Who may apply?

70 Evidence in support of application

71 Independent statement

72 Filing and service of application

73 Unsecured creditors

74 Time and mode of service

75.1 Application by qualifying floating charge holder

75.2 Application where company is in liquidation

75.3 Intervention by holder of qualifying floating charge

75.4 Application by liquidator

76 Abridgement of time for service and applications not on notice

77 Interim orders

78 Effect of making the application

79 The hearing

80 The order and the procedural steps immediately following

81 Costs

82 Power to appoint

83 Alternative of appointing an administrative receiver

84 More than one qualifying floating charge holder: priorities

85 Bars on appointment of an administrator by the holder of a qualifying floating charge

86 Procedure for appointment of administrator by qualifying floating charge holder

87 Procedure for out-of-hours appointment under the Insolvency Act 1986 Schedule B1 paragraph 14

88 Notification of appointment

89 Indemnity: invalid appointment

90 When procedure available

91 Notices required

92 Notice of appointment where there is no qualifying floating charge holder

93 Filing of notice of appointment in court

94 Documents to be filed with the notice of appointment where there is no qualifying floating charge holder

95 Notice of intention to appoint where there is no qualifying floating charge holder

96 Timing of appointment

97 Notification of appointment

98 Out-of-court procedure where there is a qualifying floating charge holder

99 More than one qualifying floating charge holder

100 Filing in court and interim moratorium

101 Notice of appointment where there is a qualifying floating charge holder

102 The moratorium

103 Winding up

104 Administrative receiver and other receivers

105.1 In general

105.2 Definition of ‘security’ and ‘goods in the company’s possession’

105.3 Moratorium on commencement or continuation of legal process

105.4 Grant of permission by the court

106 Officers and employees of the company

107 Existing contracts

108 Introduction

109 Application by creditor to set aside the administration

110 Steps immediately after the order

111 VAT: notification of HM Revenue and Customs

112 Statement of affairs

113 Statement of concurrence

114 Publicity

115 Powers of administrator

116 Special power to deal with charged property

117 Control of property

118 Control of exercise of administrator’s powers

119 Reports to creditors (progress reports)

120 Receipts and payments account

121 Power to dispose of assets, business and property without holding a creditors’ meeting

122 Misfeasance by administrator

123 Administrator’s obligation

124 Contents of the administrator’s statement

125 Details of pre-administration fees to be included in administrator’s proposal where appropriate

126 Notice of decision procedure

127 Appointment of creditors’ committee

128 When initial creditors’ decision is not required

129 Voting

130 Qualified majority

131 Record of decision

132 Revised proposals by administrator

133 Position under previous law

134 Distribution to creditors

135 Automatic termination of administration after one year

136 Termination of administration where purpose of administration achieved

137 Moving from administration to voluntary liquidation

138 Moving from administration to dissolution

139 Termination by court order

140 Discharge of administration order and release of administrator

141 Costs and expenses of administration

142 Review of remuneration requested by administrator

143 Resignation of administrator

144 Death of administrator

145 Removal of administrator from office

146 Replacement of administrator

147 Block replacement

148 Introduction

149 Phasing out of administrative receivers

150 Necessary conditions of appointment

151 Formalities of appointment

152 Notice of appointment of administrative receiver

153 Indemnity and remuneration

154 Statement of affairs—administrative receiver’s proposals

155 Creditors’ committee

156 Overview

157 Liability for contracts

158 Agency

159 Personal liability

160 Adoption of contracts

161 Contracts of employment

162 Hive downs

163 Duties owed by the receiver to the company

164 Floating charge assets

165 Preferential debts

166 The prescribed part for unsecured creditors

167 Powers of administrative receivers

168 Disposal of assets

169 Removal of receiver

170 Information

171 Summary of receipts and payments

172 Receiver’s costs, charges and expenses

173 Vacation of office

174 Winding up

175 When company may be wound up voluntarily

176 Resolutions to wind up

177 Confirmation by the court—EU Regulation cases

178 Commencement of winding up

179 Relationship to other insolvency procedures

180 Advertisement

181 Effect of voluntary winding up on company

182 Notification that company is in liquidation

183 Avoidance of share transfers etc after resolution

184 Distribution of assets

185 Property does not vest in liquidator

186 Pending actions

187 Tax on distributions

188 Members’ voluntary winding up

189 Statutory declaration of solvency

190 Appointment of liquidator

191 Notice of appointment in Gazette

192 Power to fill vacancy in office of liquidator

193 Annual progress report

194 Remuneration of liquidator

195 Conversion to creditors’ voluntary liquidation

196 Distribution of surplus assets

197 Final account prior to dissolution

198 Provisions applicable to creditors’ winding up

199 Delivery of directors’ statement of affairs to creditors and appointment of liquidator

200 Appointment of liquidator

201 Powers of liquidator before creditors’ decision procedure

202 Notice of appointment

203 Notice of outcome of creditors’ decision procedure

204 Power of liquidator to call meetings of creditors

205 Annual progress report

206 Meetings—general rules

207.1 Voting by creditors

207.2 Voting by secured creditors

208 Minutes

209 Proxies

210 Liquidation committee

211 Liquidator’s remuneration

212 Cessation of directors’ powers

213 Powers of liquidators

214 Final steps in creditors’ voluntary liquidation

215 In general

216 Entry as to liquidation under the Land Registration Act 2002

217 Appointment and removal of liquidator

218 Application to court

219 Expenses of voluntary winding up

220 Meaning of ‘contributory’

221 Liability of past and present members

222 Liability of past directors and shareholders

223 List of contributories

224 Set-off

225 Proof of debts

226 Limitation of actions

227 Set-off

228 Transactions at an undervalue and preferences

229 Statutory provisions on preferential debts

230 Contributions to occupational pension schemes etc

231 Remuneration etc of employees

232 ECSC levies on coal and steel production

233 Deposits covered by the Financial Services Compensation Scheme and ‘other deposits’

234 Ranking and abatement of preferential debts

235 Goods taken in distraint

236 General procedure on dissolution of company

237.1 In general

237.2 Procedure

238 Vesting of undistributed assets

239 Restoration to the register

240 Disposal of documents

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