Mr Justice Henderson :
Introduction
- Dairy Farmers of Britain Limited ("DFB") is an industrial and provident society ("IPS") registered under the Industrial and Provident Societies Act 1965 ("IPSA 1965"). DFB and its subsidiaries owe a substantial sum to HSBC Bank Plc ("HSBC"), secured by a debenture. DFB has also granted fixed and floating charges to HSBC Invoice Finance (UK) Limited ("HIF"). The directors of DFB have recently become increasingly concerned about DFB's financial situation, and at a meeting on 2 June 2009 they failed to gain the support of HSBC for their plans for the future funding of the business. The board accordingly concluded that DFB could not safely continue to trade, and at a further meeting held early in the morning on 3 June a resolution was passed by the board to invite HSBC to appoint insolvency practitioners of PricewaterhouseCoopers LLP as joint receivers and managers of DFB.
- HSBC and HIF ("the Applicants") were willing to make the proposed appointment, but there was a doubt whether they could lawfully do so in view of the prohibition in section 72A(1) of the Insolvency Act 1986 which provides that:
"The holder of a qualifying floating charge in respect of a company's property may not appoint an administrative receiver of the company."
As I shall explain in more detail below, the question turns on whether an IPS is a "company" within the meaning of that term in section 72A and (more generally) in Part III of the 1986 Act (sections 28 to 72H) which deals with receivership.
- In order to resolve the doubt, an urgent application to the court was made on 3 June which I heard during the afternoon. The relief sought in the application notice was a declaration that Part III of the Insolvency Act 1986 does not apply to the appointment by the Applicants of joint receivers and managers of DFB, and in particular that the prohibition in section 72A of the Act does not apply with the consequence that the Applicants may appoint receivers and managers over the whole (or substantially the whole) of DFB's property. At the conclusion of the hearing I said I was satisfied it was appropriate to make the declaration sought, and that I would give my reasons for so deciding later.
- After some debate with Counsel, I agreed that the order of the court should specifically include further declarations:
(a) that the receivers and managers so appointed would not be "administrative receivers" within the meaning of section 29(2) of the 1986 Act; and
(b) that the provisions of section 37 of the Act (personal liability on contracts etc entered into by receivers appointed out of court) would not apply to them.
- In this judgment I give my reasons for making declarations in the above terms. I express my gratitude to counsel (Mr Richard Sheldon QC and Mr Marcus Haywood) for their clear and helpful skeleton argument, produced under considerable time pressure, and to Mr Sheldon for his oral submissions, in which he presented the case both for and against the declaration sought by his clients.
Facts
- DFB was established as an IPS in 2002, with its registered office in Cheshire. Its principal object is to carry on for the benefit of its members the business of a co-operative association of agricultural producers. DFB is one of the UK's leading dairy farmers' co-operatives, marketing almost 1.2 billion litres of milk per year for approximately 1,800 member farms. It is responsible for delivering approximately 10% of the UK's milk supply, as well as being a producer of cheese. It has the following subsidiaries: Associated Co-operative Creameries Limited, ACC Milk Properties Limited, Dairy Farmers of Britain Processing Limited, Freshgrass Interments UK Limited, Lubborn Cheese Limited and Nene Valley Foods Limited.
- In total, the group employs over 2,000 staff across its business which includes the operation of three liquid milk dairies, two cheese creameries, one ingredients plant and approximately 15 distribution depots. In the year to 31 March 2008, the group turnover was approximately £562 million.
- I have already mentioned the principal security arrangements entered into between the DFB group and the Applicants. The debenture securing the current indebtedness to HSBC was granted on 15 July 2008 by DFB and the subsidiaries identified above. In addition, on 22 August 2007 DFB granted a fixed and floating charge to HIF, and a further charge of a similar nature was granted on 25 July 2008. There were also certain chattel mortgages, but for present purposes the details do not matter.
- On 3 June 2009, DFB and its subsidiaries defaulted under the terms of their facility arrangements with HSBC and (as I have already explained) the board of directors of DFB requested HSBC to appoint receivers of DFB.
- It is important to note at this point that it would not be possible for the Applicants to appoint joint administrators of DFB pursuant to Part II of the Insolvency Act 1986 or schedule B1 thereto. Such an order may only be made in respect of a "company", which by virtue of the relevant definitions means a company formed and registered under the Companies Act 1985 or (now) the Companies Act 2006. Section 255 of the Enterprise Act 2002 makes provision for the Treasury, with the concurrence of the Secretary of State, by order to provide for the provisions of Part II of the 1986 Act to apply to societies registered under IPSA 1965, but no such order has yet been made. Accordingly, although administration is the form of insolvency process now generally favoured by Parliament and the "rescue culture" which it seeks to promote, it is not available to an IPS.
The statutory regime applicable to Industrial and Provident Societies
- A helpful review of some of the main provisions of the statutory regime which applies to industrial and provident societies may be found in the judgment of His Honour Judge Hague QC, sitting as a judge of the High Court, in In re Devon & Somerset Farmers Ltd [1994] Ch 57, [1994] 1 BCLC 99, at 60-62. IPSA 1965 was a consolidating Act, and it has been supplemented by further Acts since that date, including the Industrial and Provident Societies Act 1967 ("IPSA 1967"). The regulatory and record-keeping functions formerly performed by the Registrar of Friendly Societies were transferred to the Financial Services Authority ("the FSA") by the Financial Services and Markets Act 2000, but subject to that change the statutory framework is still essentially the same as it was in 1993 when the judgment in In Re Devon & Somerset Farmers Ltd was given.
- A society may be registered as an IPS if certain conditions are fulfilled, and in particular if (under section 1(2) of IPSA 1965 as amended):
"(a) … the society is a bona fide co-operative society; or
(b) … in view of the fact that the business of the society is being, or is intended to be, conducted for the benefit of the community, there are special reasons why the society should be registered under this Act rather than as a company under the Companies Act 1985."
- A registered IPS has members, but by virtue of its registration it is a body corporate which may sue and be sued in its registered name, and in which all the property of the society is vested (section 3). It must have registered rules, which bind its members, and must make provision for the matters listed in schedule 1 (section 14). An annual return must be made to the FSA (section 39), and under section 43 any receiver or manager of a registered society appointed under the powers contained in any instrument must give notice of his appointment and deliver periodic returns to the FSA.
- Sections 52 and 53 provide for a registered society to convert itself into a company under the Companies Acts, and vice versa. Section 55 provides that a registered society may be dissolved, and where it is wound up pursuant to "an order or resolution made as is directed in regard to companies by the Insolvency Act 1986", the provisions of the 1986 Act shall apply to that order or resolution as if the society were a company, but subject to certain modifications. In Re Norse Self Build Association Ltd [1985] BCLC 219, Harman J held that section 55 enables an IPS to be wound up by the court in exactly the same way as if it were a company under the Companies Acts and that it is unnecessary to have resort to the power to wind up unregistered companies now contained in Part V of the 1986 Act.
- Under IPSA 1967, a registered society has power to create a fixed or floating charge over its assets, and such a charge does not have to be registered as a bill of sale. The instrument creating the charge has to be recorded with the FSA within 21 days of its execution.
- Judge Hague summarised the position in this way in In re Devon & Somerset Farmers Ltd at 61H:
"A registered society is thus in many ways similar to a company registered under the Companies Acts. It is a body corporate, its members have limited liability, the word "Limited" is the last word in the title of every society, there are comparable provisions as regards rules, accounts and the registration of charges, and so on. But [IPSA 1965] and the subsequent Acts nevertheless provide a quite separate and distinct statutory framework. Importantly for present purposes, there are separate and different provisions regarding floating charges and the appointment of receivers."
The meaning of "company" in Part III of the Insolvency Act 1986
- The first Group of Parts of the Insolvency Act 1986 deals with company insolvency and consists of Part I (company voluntary arrangements), Part II (administration), Part III (receivers and managers), Part IV (winding up of companies registered under the Companies Acts), Part V (winding up of unregistered companies), Part VI (miscellaneous provisions) and Part VII (interpretation). The last section of Part VII is section 251, which defines certain expressions (which do not include "company"), and then continues (as amended with effect from 1 October 2007):
"Any expression (other than one defined above in this section)-
(a) for whose interpretation provision is made by Part 26 of the Companies Act, or
(b) that is defined for the purposes of the Companies Acts,
has the same meaning in this Group of Parts."
By virtue of section 436, "the Companies Act" means the Companies Act 1985, and "the Companies Acts" means the Companies Acts (as defined in section 2 of the Companies Act 2006) as they have effect in Great Britain.
- Definitions of "company" are to be found both in section 735 of the Companies Act 1985 and in section 1 of the Companies Act 2006. Section 735(1) of the 1985 Act provides that:
"In this Act –
(a) "company" means a company formed and registered under this Act, or an existing company; …"
and subsection (4) says that:
"The definitions in this section apply unless the contrary intention appears."
Section 1(1) of the Companies Act 2006 provides that:
"In the Companies Acts, unless the context otherwise requires –
"company" means a company formed and registered under this Act …"
For present purposes, there is no material distinction between the two definitions. In each case, "company" means a company formed and registered under the relevant Companies Act, and the definition applies "unless the contrary intention appears" or "unless the context otherwise requires".
- Since an IPS is not a company formed and registered under the Companies Acts, it follows that it is not a "company" for the purposes of Part III of the Insolvency Act 1986, including section 72A, unless a contrary intention appears or the context otherwise requires.
- I have already quoted the prohibition in section 72A(1), which prevents the holder of a qualifying floating charge in respect of a company's property from appointing an administrative receiver of the company. The section applies to a floating charge created on or after a date appointed by the Secretary of State (which was in fact 15 September 2003), and it applies in spite of any provision of an agreement or instrument which purports to empower a person to appoint an administrative receiver, by whatever name: see subsection (4). In the present case it is clear that HSBC is the holder of a qualifying floating charge in respect of the property of DFB, and the floating charge was created after 15 September 2003. Section 72A is subject to a number of exceptions set out in sections 72B to 72GA, but none of those exceptions is applicable. Furthermore, it is clear that if DFB is a company within the meaning of section 72A, the proposed receivers would be "administrative receivers" within the meaning of section 29(2), which relevantly defines "administrative receiver" as meaning:
"(a) a receiver of manager of the whole (or substantially the whole) of a company's property appointed by or on behalf of the holders of any debentures of the company secured by a charge which, as created, was a floating charge …"
Accordingly, there appears to be no escape from the conclusion that the proposed appointment of receivers would fall foul of the prohibition in section 72A(1), if DFB is a company within the meaning of the section. If, however, DFB is not a company within the meaning of the section, the prohibition does not apply, and there is nothing to prevent the Applicants from making the proposed appointment.
- I now turn to the critical issue, which is whether there is anything in the context of section 72A or the remainder of Part III of the 1986 Act to suggest that "company" in that section, or elsewhere in Part III, includes a registered IPS. I begin with the general comment that it would be surprising if such an intention were to be found, given the existence of a separate statutory and regulatory regime which applies to registered societies as I have described, and given the Companies Acts definitions of "company" to which I have referred. It would be even more surprising if the prohibition in section 72A were to apply, when the normal alternative of an appointment of administrators is not available: see paragraph 10 above. The evident purpose of section 72A was to prevent the appointment of administrative receivers in circumstances where the preferable alternative of an administration under Part II or schedule B1 to the Act is available. It is hard to see what sensible legislative purpose could be served by forbidding the appointment of receivers by a floating charge holder where administration is not an available alternative.
- It is material to note that section 72A was introduced into the Insolvency Act 1986 by section 250 of the Enterprise Act 2002. This section formed part of the major reforms of corporate and personal insolvency law introduced by Part 10 of the 2002 Act, including the replacement of Part II of the Insolvency Act 1986 with the new corporate administration regime in schedule B1. Also included in Part 10 of the 2002 Act was section 255, which (as I have already mentioned) empowered the Treasury, with the concurrence of the Secretary of State, by statutory instrument to apply any of the provisions of Parts I or II of the 1986 Act, with or without modification, to societies registered under IPSA 1965 and various categories of friendly society. In my judgment these provisions reflect a clear recognition by Parliament that companies registered under the Companies Acts on the one hand, and registered industrial and provident societies on the other hand, are normally subject to separate insolvency regimes, and an intention that Parts I and II of the 1986 Act were not to apply to the latter unless an order was made for that purpose. Section 255 reflects, and reinforces, the inference which it would anyway be natural to draw from the limited definition of "company" in the Companies Acts and the existence of a separate statutory regime governing industrial and provident societies.
- The same legislative approach is in my judgment to be found in section 55 of IPSA 1965, which provides in effect for the winding up provisions in Part IV of the 1986 Act to apply to a registered IPS as if it were a company, but subject to certain modifications (for example references to the registrar in the 1986 Act are to be construed as references to the FSA). This again strongly suggests that Parliament's intention was not to treat a registered IPS as a "company" for the purposes of the winding up provisions in the 1986 Act, in the absence of the express application of those provisions (with modifications) by section 55.
- A further indication is to be found in section 38 of the 1986 Act, which provides that every receiver or manager of a company's property, other than an administrative receiver, must deliver periodical accounts of his receipts and payments to the registrar of companies. It would be strange if this provision applied to a receiver of an IPS, because section 43 of IPSA 1965 obliges every receiver or manager of the property of a registered IPS who has been appointed under the powers contained in any instrument to deliver a return to the FSA every six months showing his receipts and payments during the relevant period. I agree with counsel for the Applicants that it would be surprising if a receiver of an IPS were under a dual obligation to supply accounts both to the registrar of companies and to the FSA. The duplication would appear to be pointless, particularly as floating charges granted by a registered IPS have to be registered with the FSA and not with the registrar of companies: see paragraph 15 above.
- I have so far considered the question without reference to authority. I must now examine the two cases which were cited to me by Mr Sheldon, and which may throw light on the problem.
- The first case is the decision of Mummery J (as he then was) in In re International Bulk Commodities Limited [1993] Ch 77, [1992] BCLC 1074. The issue was whether receivers appointed under a debenture in a standard English form given by an unregistered foreign company to its bankers were administrative receivers within the meaning of section 29(2) of the Insolvency Act 1986, or whether their powers were limited to those conferred by the debenture. The receivers applied to the court for resolution of the issue, because they had been unable to obtain any assistance from the directors of the company (which had been incorporated in Liberia, and carried on a world wide trade of buying and selling commodities), and they wished to use the procedures in sections 234 to 236 of the 1986 Act for the purpose of obtaining information. Those powers were only available to the receivers if they were "office holders", a term which was defined as including administrative receivers.
- Mummery J recorded at 83A that the company was amenable to the jurisdiction of the English court to wind up unregistered companies under Part V of the 1986 Act. He then said that he would use the expression "unregistered company" to mean any company which is liable to be wound up under Part V of the 1986 Act. As Mr Sheldon pointed out, the judge's decision to define the phrase in this way potentially widened the issue, in a way that was unnecessary to his decision, from the particular case of a foreign company to any other body which is liable to be wound up under Part V of the 1986 Act. The scope of Part V is very wide, because section 220(1) defines "unregistered company" as including "any association and any company" with the exception (broadly speaking) of companies registered in any part of the United Kingdom. There seems to be little doubt that an IPS would fall within this definition, and could therefore be wound up as an unregistered company under Part V, even though separate provision for the winding up of such societies is undoubtedly made by section 55 of IPSA 1965.
- Mummery J went on to refer, by way of background, to the introduction of the statutory concept of an "administrative receiver" in the 1986 Act, building on recommendations of the Cork Committee, and to the introduction of the statutory alternative of the making of an administration order under Part II. He concluded (at 83H-84F) that Parliament intended to promote two purposes relevant to the appointment of receivers by debenture holders. First, Parliament wished to give statutory recognition and reinforcement to the existing regime whereby receivers were appointed out of court pursuant to contractual provisions. Secondly, Parliament provided the alternative of an administration order in circumstances where the power to appoint a receiver did not exist, or where the power existed but had not been exercised, or where the person who had appointed a receiver wished to change from one regime to the other. As Mr Sheldon pointed out, this second statutory purpose identified by Mummery J has now been superseded by the very different philosophy reflected in section 72A.
- Mummery J then considered what he identified as being the crucial question, namely what is a "company" for the purposes of section 29(2). He referred to the definition which takes one to section 735(1) of the Companies Act 1985, and said it would be the end of the matter but for the saving in subsection (4) "unless the contrary intention appears". He then continued at 85D:
"An intention to displace the prima facie or primary meaning of the defined statutory term may appear in a number of ways. The intention may appear from an express definition in different terms made for the purpose of a particular section or group of sections … There is no different express definition of "company" for the purposes of administrative receivership provisions generally.
A contrary intention may also appear from the subject matter and manifest purpose of the relevant provisions when construed in the context of both the immediately relevant provisions and of the Act as a whole: see, for example, Law Society v United Service Bureau Limited [1934] 1 KB 343, 347,348.
The relevant question is therefore: is there any indication in the subject matter and statutory purpose of the provisions concerning administrative receivers generally, or in the Act of 1986 considered as a whole, from which it appears that Parliament intended that the word "company" in the context of section 29(2)(a) of that Act should not be confined to its prima facie meaning of a company formed and registered under the Companies Acts, but should also embrace unregistered companies liable to be wound up under Part V of the Act of 1986?"
- Mummery J went on to hold that such indications were indeed to be found. His starting point was that the legislative concept of administrative receivership rested on a contractual foundation, and the general purpose of "the statutory superstructure" was "to strengthen and build on the continuing contractual foundation for the greater benefit of all affected – the company, the contributories, the creditors, both secured and unsecured, and the preferential creditors, as well as the public generally" (86A-B). The attainment of that general purpose was prima facie as appropriate to the case of an unregistered company as to the case of a registered company. It would make no sense, the judge said at 86D, "to confine the purpose and scheme of administrative receivership to appointments of receivers made over the property of registered companies". The foreign element was of no particular relevance, where the company in question had granted a debenture secured by a floating charge in the normal English form. Both registered and unregistered companies might engage in activities both in England and abroad, and might have creditors and assets both in England and abroad. Both were liable to be wound up by the English court.
- Mummery J found some further support in sections 230(2) and 388(1) and (4) of the 1986 Act for the view that a receiver appointed over the property of an unregistered company may be regarded as an administrative receiver within the meaning of the Act, and then stated his conclusion at 87B:
"In my judgment, the court should construe the relevant provisions, where the wording so permits, to promote and not to frustrate the evident legislative purpose, in this case reinforcing the position of contractual receivers. The express statutory definition of "company" is only its prima facie meaning, since it is expressly provided in section 735(4) of the Act of 1985 that the defined meaning may be displaced where a contrary intention appears. For the reasons I have stated above, a contrary intention does appear from the subject and the purpose of the provisions. The court should favour a construction which is consistent with and contributes to the smooth and efficient working of the contractual machinery recognised and reinforced by the legislation."
- I would comment at this point that Mummery J's approach to the question very much depended on the proposition that the administrative receivership regime introduced in 1986 was intended to build on and strengthen the non-statutory contractual system which had grown up, and on his view that in achieving this purpose Parliament could not sensibly have intended to treat receivers of foreign companies differently from receivers of English companies. Two major points of distinction from the present case may at once be noted. First, Mummery J gave no consideration to the position of a registered IPS, and the separate statutory regime which applies to such societies. The case before him concerned a foreign company, and there were obviously strong policy reasons why it was desirable that the receivers should have the same information-gathering powers available to them as their English counterparts. Secondly, although the construction of section 29(2) adopted by Mummery J was consistent with the statutory purpose which he had identified, and would, as he put it, contribute to the smooth and efficient working of the contractual machinery recognised and reinforced by the legislation, the very opposite result would be achieved if, in the present case, section 72A were to be construed as applying to a receiver of an IPS. As I have already pointed out, the effect of such a construction would be to leave a debenture holder unable either to appoint an administrative receiver of the IPS or to apply to the court for an administration order.
- The second case which I need to consider is the decision of Judge Hague QC in In re Devon & Somerset Farmers Ltd, loc.cit, to which I have already referred for the judge's helpful summary of the legislation relating to registered industrial and provident societies. The issue on which he had to rule was whether the receivers of Devon & Somerset Farmers Ltd, which was a registered IPS, were under a statutory duty to pay preferential creditors of the society after discharging the debt owed to the bank which had appointed them and before handing over the surplus to the liquidator, the society having subsequently gone into creditors' voluntary liquidation. The question turned on whether the society was a "company" for the purposes of section 40 of the 1986 Act. Section 40 is contained in Part III of the Act, and it applies "in the case of a company, where a receiver is appointed on behalf of the holders of any debentures of the company secured by a charge which, as created, was a floating charge": section 40(1). By virtue of subsection (2), if the company is not at the time in course of being wound up, its preferential debts are to be paid out of the assets coming to the hands of the receiver in priority to any claims for principal or interest in respect of the debentures. The judge heard argument from the receivers and the liquidator, the former contending that section 40 did apply and the latter that it did not. He held that the society was not a "company" for the purposes of section 40, and that the receivers were therefore entitled to distribute the surplus to the liquidator without regard to the provisions of the section.
- After referring to the relevant definitions, the judge said at 64D that, apart from authority, he would not have considered that there was anything in the context of either Part II or Part III of the 1986 Act which amounted to a "contrary intention" under section 735(4) of the Companies Act 1985, so as to extend the meaning of "company" beyond its prima facie meaning of a Companies Act company. After briefly mentioning two earlier cases, where the court had proceeded on the footing that there was no power to make an administration order under Part II of the 1986 Act in respect of a foreign company, the judge went on to consider at some length the decision of Mummery J in In re International Bulk Commodities Ltd. After explaining the issue in that case, and citing extensively from the judgment of Mummery J, Judge Hague continued at 66F:
"Mr Davies [counsel for the liquidator] submitted that in In re International Bulk Commodities Ltd was wrongly decided, and that I should not follow it. He said that the reasoning of Mummery J was based on a "why not" approach which was not sufficient, and that the decision took the modern purposive approach too far. He also pointed out that Mummery J was not referred to certain provisions of the Insolvency Act 1985 which was consolidated by the Act of 1986 and to which I will refer. I have felt the force of these submissions. For my part, I doubt if the subject and purpose of the provisions can be sufficient to amount to a contrary intention appearing; it seems to me that something more is required for that purpose. Parliament may have had reasons for confining the new concept of administrative receivers to Companies Act companies, e.g. to see how it worked in practice before extending it to unregistered companies. Moreover, in section 388(4) of the Act of 1986, which is concerned with the qualifications required for an insolvency practitioner, "company" is defined for the purposes of the section:
" 'company' means a company within the meaning given by section 735(1) of the Companies Act or a company which may be wound up under Part V of this Act (unregistered companies); …"
If Parliament had intended that any of the sections in Part II or Part III of the Act should extend to unregistered companies, it is hard to understand why a similar definition was not included. The contrast with section 251 of the Act of 1986 and section 735 of the Companies Act 1985 is striking, and in my view significant.
Mr Nicholls [counsel for the receivers] submitted that, although not technically binding on me, Mummery J's decision was a fully reasoned decision which I ought to follow. I respectfully decline to do so. Although he referred in general terms to "unregistered companies", Mummery J in that case was, of course, only concerned with overseas companies. He did not hear argument on the rather different position as to industrial and provident societies and their own special legislation, including the specific provisions which I have mentioned as to receivers and floating charges. His general references to "unregistered companies" were not necessary for his decision and were obiter. Moreover, he was only concerned with the powers of a receiver, and not with any question of preferential debts. That being so, I do not consider it is necessary for me to come to any concluded view as to the correctness of In re International Bulk Commodities Ltd which in my judgment is distinguishable and should be confined to the powers of receivers of overseas companies appointed under debentures."
- Judge Hague then considered the legislative history of sections 29(2) and 40 of the 1986 Act, and found in it further support for the view that the sections were intended by Parliament to apply only to Companies Act companies. After rejecting an alternative submission advanced by counsel for the receivers, he stated his conclusion as follows at 69G:
"For the reasons which I have outlined above, in my judgment the word "company" cannot be interpreted for the purposes of section 40 as including industrial and provident societies. As such societies have their own legislation, including provisions regarding receivers, I find it impossible to find that they are included within the definition of company by reason of section 251 of the Insolvency Act 1986. I would have reached this conclusion independently of the previous legislative history, but I think it is confirmed by that history. I agree with Mr Davies that Parliament cannot have intended by the relatively minor alterations in the definition sections of the Act of 1986 to effect a substantial extension of the law relating to receivers so as to cover industrial and provident societies. I also agree with Mr Davies that Parliament cannot have intended to apply different schemes for the payment of preferential creditors depending on whether the debenture holders appoint a receiver or take possession themselves. In the former case, there is no question of section 196 of the Companies Act of 1985 applying.
Mr Davies also drew attention to certain further anomalies which would arise if company in Part III includes industrial and provident societies. It would mean that the receivers of such a society would have dual reporting and other obligations to the Registrar of Friendly Societies [now the FSA] and to the Registrar of Companies. It would also mean that the provisions of that Part would apply without, apparently, the charge having to be registered under section 395 of the Act of 1985."
- I confess that I share some of the doubts expressed by Judge Hague as to whether in In re International Bulk Commodities Ltd was correctly decided. However, it is unnecessary for me to express a concluded view on the point, because I also agree with Judge Hague that the decision is clearly distinguishable on the ground that the only question the court had to decide was whether the receivers of a foreign company appointed pursuant to a debenture were administrative receivers within the meaning of section 29(2) of the 1986 Act. If the decision is correct, the word "company" in section 29(2) includes a foreign company liable to be wound up under Part V of the Act. It by no means follows, however, that the word "company" in that section, or anywhere else in Part III, should include a registered IPS. In my view Judge Hague was right to conclude that section 40 does not apply to a registered IPS, because it is not a company registered under the Companies Acts and no contrary intention can be discerned in the legislation. Furthermore, I agree with him that this conclusion does not depend on an examination of the legislative history, although in that case it provided additional support for the conclusion.
- In the present case, no submissions based on the legislative history of section 72A have been addressed to me. That is hardly surprising, because it was a new section introduced by the Enterprise Act 2002. As I have sought to explain, however, the relevant context in the Enterprise Act 2002, and the express provisions of section 255, appear to me to provide confirmation of Parliament's intention that Parts I and II of the 1986 Act should not apply to an IPS unless and until the Treasury by statutory order so provides. This reflects the prima facie definition of "company" in the Companies Acts, and also strongly suggests that the general desirability of the provisions of Parts I and II in relation to companies is not, in itself, sufficient to amount to a contrary intention for the purposes of the definition. If that is the position with regard to Parts I and II, I can see no reason for adopting a different approach to Part III, either generally or with specific reference to section 72A.
- I find further support for my conclusion, as I have already indicated, in the sheer implausibility of Parliament having intended that section 72A should apply to an IPS, in circumstances where it is not open to the holder of a qualifying floating charge to place the IPS into administration. That apart, the decision in In re Devon & Somerset Farmers Ltd is existing authority to the effect that section 40 of the 1986 Act does not apply to a registered IPS because it is not a "company" for the purposes of that section; and I agree with Mr Sheldon that the same must also be true of section 38, in view of the anomaly if a receiver of an IPS were obliged to submit accounts of the receivership to the Registrar of Companies as well as to the FSA.
- I should finally say a brief word about the further declarations that I agreed to make in relation to sections 29(2) and 37.
- So far as section 29(2) is concerned, if DFB is not a company for the purposes of Part III it must follow that the proposed receivers will not be "administrative receivers" within the meaning of section 29(2). Indeed, this follows from the decision in In re Devon & Somerset Farmers Ltd: see in particular 63G-H, 67D-F, 68H-69A and 69G-H.
- Section 37 provides as follows:
"37 Liability for contracts, etc
(1) A receiver or manager appointed under powers contained in an instrument (other than an administrative receiver) is, to the same extent as if he had been appointed by order of the court –
(a) personally liable on any contract entered into by him in the performance of his functions (except in so far as the contract otherwise provides) and on any contract of employment adopted by him in the performance of those functions, and
(b) entitled in respect of that liability to indemnity out of the assets.
(2) For the purposes of subsection (1)(a), the receiver or manager is not to be taken to have adopted a contract of employment by reason of anything done or omitted to be done within 14 days after his appointment.
(3) …
(4) Where at any time the receiver or manager so appointed vacates office –
(a) his remuneration and any expenses properly incurred by him, and
(b) any indemnity to which he is entitled out of the assets of the company,
shall be charged on and paid out of any property of the company which is in his custody or under his control at that time in priority to any charge or other security held by the person by or on whose behalf he was appointed."
- It is a curiosity of the drafting of section 37(1) that the words "receiver or manager" are not followed by "of a company's property" or some similar expression: compare, for example, sections 29(2), 31(1), 33(1), 33(2) and 35(1). Accordingly, if the subsection is read in isolation, it might be thought to be capable of applying to a receiver or manager of the property of an IPS. However, the references to "the company" in section 37(4) make it clear, to my mind, that the section applies only to receivers or managers of the property of a company, and that no significance can be attached to the omission of any reference to a company in subsection (1). There is nothing in subsection (4) to indicate that "company" has anything other than its usual Part III meaning, and the subsection presupposes that the receiver or manager "so appointed", that is to say appointed in the manner referred to in subsection (1), will be the receiver or manager of the property of a company.
- A further indication that this is the correct interpretation of subsection (1) may be found in the exclusion from the subsection of administrative receivers. That term is defined in section 29(2) by reference to a company, and the corresponding provision to section 37 which deals with the position of an administrative receiver, namely section 44, expressly applies to "the administrative receiver of a company".
- I am therefore satisfied that section 37 can have no application to receivers of an IPS, and that it is appropriate to make the declaration sought by the Applicants in relation to this section as well as section 29(2).
