• Chapter 3 Chapter 3 — Appointment of Administrator of a Company by Holder of Qualifying Charge

    • 21. Power to appoint

      (1) The holder of a qualifying charge in respect of a Company's property may appoint an administrator of the Company.
      (2) For the purposes of subsection (1) a charge qualifies if created by an instrument which —
      (a) states that this subsection applies to the charge;
      (b) purports to empower the holder of the charge to appoint an administrator of the Company; or
      (c) purports to empower the holder of the charge to make an appointment which would be the appointment of an administrative receiver within the meaning given by Section 152 (Appointment and powers of receivers and administrative receivers).
      (3) For the purposes of subsection (1) a person is the holder of a qualifying charge in respect of a Company's property if he holds one or more debentures of the Company secured —
      (a) by a qualifying charge which relates to the whole or substantially the whole of the Company's property; or
      (b) by a number of qualifying charges and other forms of security which together relate to the whole or substantially the whole of the Company's property.

    • 22. Restrictions on power to appoint

      (1) A person may not appoint an administrator of a Company under Section 21 (Power to appoint) unless —
      (a) he has given at least two business days' written notice of the intention to appoint to the holder of any prior charge which satisfies Section 21(2) (Power to appoint); or
      (b) the holder of any prior charge which satisfies Section 21(2) (Power to appoint) has consented in writing to the making of the appointment.
      (2) One charge is prior to another for the purposes of this Section and Section 140 (Substitution of administrator: competing qualifying charge-holder) if —
      (a) it is to be treated as having priority in accordance with an agreement to which the holder of each charge was party; or if there is no such agreement determining priority
      (b) it (or in the case of Section 21(3)(b) (Power to appoint), any charge or security forming part of it) is registered under section 784 (Charges created by a company) of the Companies Regulations 2015 and was created first.
      (3) An administrator of a Company may not be appointed under Section 21 (Power to appoint) while a charge on which the appointment relies is not enforceable.
      (4) An administrator of a Company may not be appointed under Section 21 (Power to appoint) if —
      (a) a provisional liquidator of the Company has been appointed under Section 210 (Appointment of provisional liquidator or of liquidator following administration); or
      (b) an administrative receiver of the Company is in office.

    • 23. Notice of appointment

      (1) A person who appoints an administrator of a Company under Section 21 (Power to appoint) shall file with the Court —
      (a) a notice of appointment in the prescribed form; and
      (b) the administrator's written statement in the prescribed form; and
      (c) either —
      (i) evidence that the person making the appointment has given such notice as may be required by Section 22(1)(a) (Restrictions on power to appoint); or
      (ii) copies of the written consent of all those required to give consent in accordance with Section 22(1)(b) (Restrictions on power to appoint); and
      (d) a statement of those matters provided for in Section 145(2) (Joint administrators), if applicable.
      (2) The notice of appointment must include a declaration (in a form prescribed by the Board in rules made by the Board) by or on behalf of the person who makes the appointment —
      (a) that the person is the holder of a qualifying charge in respect of the Company's property;
      (b) that each charge relied on in making the appointment is (or was) enforceable on the date of the appointment; and
      (c) that the appointment is in accordance with this Part 1 (Administration).
      (3) The notice of appointment must identify the administrator of the Company and must be accompanied by a statement by the administrator of the Company —
      (a) that he consents to the appointment;
      (b) that in his opinion the purpose of administration is reasonably likely to be achieved; and
      (c) giving such other information and opinions as may be prescribed.
      (4) For the purpose of a statement under subsection (3) an administrator of the Company may rely on information supplied by Directors of the Company (unless he has reason to doubt its accuracy).
      (5) A declaration under subsection (2) must be made not more than five (5) business days before the form is filed with the Court.
      (6) A person commits a contravention and is liable to a fine at the relevant level set out in the Fines Schedule if in a declaration under subsection (2) he makes a statement —
      (a) which is false; and
      (b) which he does not reasonably believe to be true.

    • 24. Notice of intention to appoint

      (1) The notice of intention to appoint for the purposes of Section 46(2) (Interim moratorium) shall be in the prescribed form.
      (2) For the purposes of Section 46(2) (Interim moratorium), a copy of the prescribed form shall be filed with the Court at the same time as it is sent in accordance with Section 22(1) (Restrictions on power to appoint) to the holder of any prior qualifying charge.
      (3) The provisions of Section 15(2) to (4) (Manner in which service to be effected) shall apply to the sending of such notice as they apply to the manner in which service of an administration application is effected under that Section.

    • 25. Notice of appointment

      (1) Written consent may be given by the holder of a prior qualifying charge where a notice of intention to appoint an administrator of a Company has been given and filed with the Court in accordance with Section 24 (Notice of intention to appoint), by completing the section provided on the prescribed form and returning to the appointor a copy of the form.
      (2) Where the holder of a prior qualifying charge does not choose to complete the section provided on the prescribed form to indicate his consent, or no such form has been sent to him, his written consent shall include —
      (a) details of the name, address of registered office and registered number of the Company in respect of which the appointment is proposed to be made;
      (b) details of the charge held by him including the date it was registered and, where applicable, any financial limit and any deeds of priority;
      (c) his name and address;
      (d) the name and address of the holder of the qualifying charge who is proposing to make the appointment;
      (e) the date that notice of intention to appoint was given;
      (f) the name of the proposed administrator of the Company;
      (g) a statement of consent to the proposed appointment,
      and it shall be authenticated and dated.
      (3) This Section is subject to Section 27 (Appointment taking place out of Court business hours), the provisions of which apply when an appointment is to be made out of Court business hours.
      (4) Three copies of the notice of appointment shall be filed with the Court and shall have applied to them the seal of the Court and be endorsed with the date and time of filing.
      (5) The Court shall issue two of the sealed copies of the notice of appointment to the person making the appointment, who shall as soon as reasonably practicable send one of the sealed copies to the administrator of a Company.
      (6) Where, after receiving notice that an administration application has been made, the holder of a qualifying charge appoints an administrator of the Company in reliance on Section 21 (Power to appoint), he shall, as soon as reasonably practicable, send a copy of the notice of appointment to the person making the administration application and to the Court in which the application has been made.

    • 26. Commencement of appointment

      (1) The appointment of an administrator of a Company under Section 21 (Power to appoint) takes effect when the requirements of Section 23 (Notice of appointment) are satisfied.
      (2) A person who appoints an administrator of a Company under Section 21 (Power to appoint) —
      (a) shall notify the administrator of the Company and such other persons as may be prescribed as soon as is reasonably practicable after the requirements of Section 23 (Notice of appointment) are satisfied; and
      (b) commits a contravention and is liable to a fine at the relevant level set out in the Fines Schedule if he fails without reasonable excuse to comply with paragraph (a).

    • 27. Appointment taking place out of Court business hours

      (1) The holder of a qualifying charge may file a notice of appointment with the Court, notwithstanding that the Court is not open for public business. When the Court is closed (and only when it is closed) a notice of appointment may be filed with the Court by faxing that form or sending it as an attachment to an e-mail in accordance with subsections (3) and (4). The notice of appointment shall be in the prescribed form.
      (2) The filing of a notice in accordance with this Section shall have the same effect for all purposes as a notice of appointment filed in accordance with Section 25 (Notice of appointment) with the Court.
      (3) The notice must be —
      (a) faxed to a designated telephone number; or
      (b) sent as an attachment by e-mail to a designated e-mail address,
      which must be provided by the Court for that purpose.
      (4) The Court must publish the designated telephone number and e-mail address on the Court website and, on request to the Court, make them available in writing.
      (5) The appointor shall ensure that —
      (a) a fax transmission report detailing the time and date of the fax transmission and the telephone number to which the notice was faxed and containing a copy of the first page (in part or in full) of the document faxed is created by the fax machine that is used to fax the form; or
      (b) a hard copy of the e-mail is created detailing the time and date of the e-mail and the address to which it was sent and containing a copy of the document sent as an attachment,
      as the case may be; and the appointor must retain the report or hard copy.
      (6) The appointment shall take effect from the date and time of the fax transmission or sending of the e-mail. The appointor shall notify the administrator of the Company, as soon as reasonably practicable, that the notice has been filed.
      (7) The copy of the faxed notice of appointment or the e-mail (or a hard copy of the e-mail) containing the notice of appointment as received by the Court (as the case may be), shall be forwarded as soon as reasonably practicable to the Court to be placed on the relevant Court file.
      (8) The appointor shall take three copies of the notice of appointment that was faxed to the designated telephone number, together with the transmission report or hard copy required by subsection (5) and all the necessary supporting documents listed on the prescribed form, to the Court on the next day that the Court is open for business.
      (9) The appointor shall attach to the notice a statement providing full reasons for the out of hours filing of the notice of appointment, including why it would have been damaging to the Company and its creditors not to have so acted.
      (10) The copies of the notice shall be sealed by the Court and shall be endorsed with the date and time when, according to the appointor's fax transmission report or hard copy of the e-mail, the notice was faxed or sent and the date when the notice and accompanying documents were delivered to the Court.
      (11) The administrator's appointment shall cease to have effect if the requirements of subsection (8) are not completed within the time period indicated in that subsection.
      (12) Where any question arises in respect of the date and time that the notice of appointment was filed with the Court it shall be a presumption capable of rebuttal that the date and time shown on the appointor's fax transmission report or hard copy of the e-mail is the date and time at which the notice was so filed.
      (13) The Court shall issue two of the sealed copies of the notice of appointment to the person making the appointment, who shall, as soon as reasonably practicable, send one of the copies to the administrator of a Company.

    • 28. Invalid appointment: indemnity

      (1) This Section applies where —
      (a) a person purports to appoint an administrator of a Company under Section 21 (Power to appoint); and
      (b) the appointment is discovered to be invalid.
      (2) The Court may order the person who purported to make the appointment to indemnify the person appointed against liability which arises solely by reason of the appointment's invalidity.