Energy Act 2004

Part 2E+W+SModifications of Schedule B1

IntroductoryE+W+S

3E+W+SThe modifications set out in this Part of this Schedule to the provisions of Schedule B1 to the 1986 Act specified in paragraph 2 apply where those provisions have effect by virtue of Part 1 of this Schedule.

General modifications of the applicable provisionsE+W+S

4E+W+SIn those provisions—

(a)for “administration application” in each place where it occurs substitute “ energy administration application ”;

(b)for “administration order” in each place where it occurs substitute “ energy administration order ”;

(c)for “administrator” in each place where it occurs substitute “ energy administrator ”;

(d)for “enters administration” in each place where it occurs substitute “ enters energy administration ”;

(e)for “in administration” in each place where it occurs substitute “ in energy administration ”;

(f)for “purpose of administration” in each place where it occurs (other than in paragraph 111(1)) substitute “ objective of the energy administration ”.

Specific modificationsE+W+S

5(1)In paragraph 1, for sub-paragraph (1) (which defines “administrator”) substitute—E+W+S

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

(2)In sub-paragraph (2) of that paragraph, for “Act” substitute “ Schedule ”.

6E+W+SIn paragraph 40 (dismissal of pending winding-up petition), omit sub-paragraphs (1)(b), (2) and (3).

7E+W+SIn paragraph 42 (moratorium on insolvency proceedings), omit sub-paragraphs (4) and (5).

8E+W+SIn paragraph 44 (interim moratorium), omit sub-paragraphs (2) to (4), (6) and (7)(a) to (c).

9E+W+SIn paragraph 46(6) (date for notifying administrator’s appointment), for paragraphs (a) to (c) substitute “ the date on which the energy administration order comes into force ”.

10(1)In sub-paragraph (2)(b) of paragraph 49 (administrator’s proposals) for “objective mentioned in paragraph 3(1)(a) or (b) cannot be achieved” substitute “ objective of the energy administration should be achieved by means other than just a rescue of the company as a going concern ”.E+W+S

(2)After sub-paragraph (4)(a) of that paragraph insert—

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

11E+W+SFor paragraph 54 (revision of administrator’s proposals) substitute—

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

(2)Where the energy administrator thinks that a revision by him is substantial, he must send a copy of the revised proposals—

(a)to the registrar of companies,

(b)to the Secretary of State and to GEMA,

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

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

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

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

(5)The energy administrator commits an offence if he fails without reasonable excuse to comply with this paragraph.”

12E+W+SIn paragraph 60 (powers of an administrator), the existing text is to be sub-paragraph (1) and after that sub-paragraph insert—

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

(3)In sub-paragraph (2) “enactment” has the same meaning as in the Energy Act 2004.”

13(1)In paragraph 68 (management duties of an administrator), for sub-paragraph (1)(a) to (c) substitute “the proposals as— E+W+S

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

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

for achieving the objective of the energy administration. ”

(2)For sub-paragraph (3)(a) to (d) of that paragraph substitute “ the directions are consistent with the achievement of the objective of the energy administration ”.

14E+W+SIn paragraphs 71(3)(b) and 72(3)(b) (handling of secured property), for “market” substitute “ the appropriate ”.

15E+W+SIn paragraph 73(3) (which contains a reference to the administrator’s proposals), for “or modified” substitute “ under paragraph 54 ”.

16(1)In paragraph 74 (challenge to administrator’s conduct), for sub-paragraph (2) substitute—E+W+S

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

(2A)The persons who may apply to the court under sub-paragraph (2) are—

(a)the Secretary of State;

(b)with the consent of the Secretary of State, GEMA;

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

(2)In sub-paragraph (6) of that paragraph, for paragraphs (a) to (c) substitute—

“(a)a voluntary arrangement approved under Part 1, or

(b)a compromise or arrangement sanctioned under [F1section 899 [F2or 901F] of the Companies Act 2006] (compromise with creditors and members).”

(3)After that sub-paragraph insert—

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

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

(a)is acting,

(b)has acted, or

(c)is proposing to act,

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

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

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

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

and that period must be a reasonable period.

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

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

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

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

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

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

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

(b)remedying the consequences of the energy administrator having acted in such a manner; and

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

17E+W+SIn paragraph 75(2) (misfeasance), after paragraph (b) insert—

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

18(1)In paragraph 79 (end of administration), for sub-paragraphs (1) and (2) substitute—E+W+S

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

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

(a)by the Secretary of State,

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

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

(2)Omit sub-paragraph (3) of that paragraph.

19E+W+SIn paragraph 83(3) (notice to registrar when moving to voluntary liquidation), after “may” insert “ , with the consent of the Secretary of State or of GEMA, ”.

20(1)In paragraph 84 (notice to registrar when moving to dissolution), in sub-paragraph (1), for “to the registrar of companies” substitute—E+W+S

“(a)to the Secretary of State and to GEMA; and

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

(2)Omit sub-paragraph (2) of that paragraph.

(3)In sub-paragraphs (3) to (6) of that paragraph, for “(1)”, wherever occurring, substitute “ (1)(b) ”.

21E+W+SIn paragraph 87 (resignation of administrator), for sub-paragraph (2)(a) to (d) substitute “ by notice in writing to the court ”.

22E+W+SIn paragraph 89 (administrator ceasing to be qualified), for sub-paragraph (2)(a) to (d) substitute “ to the court ”.

23E+W+SIn paragraph 90 (filling vacancy in office of administrator), for “Paragraphs 91 to 95 apply” substitute “ Paragraph 91 applies ”.

24(1)In paragraph 91 (vacancies in court appointments), for sub-paragraph (1) substitute—E+W+S

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

(a)by the Secretary of State;

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

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

(2)Omit sub-paragraph (2) of that paragraph.

25E+W+SIn paragraph 98 (discharge from liability on vacation of office), omit sub-paragraphs (2)(b) and (3).

26(1)In paragraph 99 (charges and liabilities upon vacation of office by administrator), in sub-paragraph (4), for the words from the beginning to “cessation”, where first occurring, substitute “ A sum falling within sub-paragraph (4A) ”.E+W+S

(2)After that sub-paragraph insert—

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

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

(b)a sum that must be repaid by the company in respect of a grant that was made before cessation under section 165 of the Energy Act 2004 as is mentioned in subsection (4) of that section;

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

(d)a sum payable by the company under subsection (4) of section 166 of that Act in respect of an agreement to indemnify made before cessation; or

(e)a sum payable by the company under subsection (5) of section 167 of that Act in respect of a guarantee given before cessation.”

(3)In sub-paragraph (5) of that paragraph, for “(4)” substitute “ (4A)(a) ”.

27E+W+SIn paragraph 100 (joint and concurrent administrators), omit sub-paragraph (2).

28E+W+SIn paragraph 101(3) (joint administrators), after “87 to” insert “ 91, 98 and ”.

29(1)In paragraph 103 (appointment of additional administrators), in sub-paragraph (2)—E+W+S

(a)omit the words from the beginning to “order”;

(b)for paragraph (a) substitute—

“(a)the Secretary of State,

(aa)GEMA, or”.

(2)After that sub-paragraph insert—

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

(3)Omit sub-paragraphs (3) to (5) of that paragraph.

30E+W+SIn paragraph 106 (penalties), omit sub-paragraph (2)(a), (b), (f), (g), (i) and (l) to (n).

31E+W+SIn paragraph 109 (references to extended periods), omit “or 108”.

32(1)In sub-paragraph (1) of paragraph 111 (interpretation)—E+W+S

(a)omit the definitions of “correspondence”, “holder of a qualifying floating charge”, “market value”, “the purpose of administration” and “unable to pay its debts”;

(b)after the definition of “administrator” (as amended by virtue of paragraph 4 of this Schedule) insert—

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

(c)for the definition of “company” substitute—

““company”, “court” and “energy administration order” have the same meanings as in Chapter 3 of Part 3 of the Energy Act 2004;”

(d)after the definition of “creditors' meeting” insert—

““energy administration application” means an application to the court for an energy administration order under Chapter 3 of Part 3 of the Energy Act 2004;

“GEMA” means the Gas and Electricity Markets Authority;”

(e)after the definition of “hire purchase agreement” insert—

““objective”, in relation to an energy administration, is to be construed in accordance with section 155 of the Energy Act 2004;

“prescribed” means prescribed by energy administration rules within the meaning of Chapter 3 of Part 3 of the Energy Act 2004;”.

(2)After sub-paragraph (3) of that paragraph insert—

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