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Insolvency – High Court JudgmentHigh Court Judgment of Mr Justice Briggs re Globespan Airways Limited: Filings under Paragraph 83(4) Schedule B1 of the Insolvency Act 1986: In February 2012 a judgment was handed down in the above case by Mr Justice Briggs, part of which concerned the interpretation of paragraphs 83(4) and 83(6) of Schedule B1 of the Insolvency Act 1986. These provisions deal with the consequences of an administrator sending a Form 2.34B (Notice of Move from Administration to Creditors Voluntary Liquidation) to the Registrar of Companies. In summary, Briggs J found that although there may be a time delay between the Registrar receiving a Form 2.34B and him processing and placing it on the register, the date of registration should be given as the date of receipt, so that the legal consequences set out at paragraph 83(6) take effect from the date of receipt. The Registrar’s policy up until the decision of Briggs J has been based on a different interpretation of these provisions, namely that ‘registration’ as referred to in paragraph 83(6) is the date on which the Registrar actually registers the document. Accordingly, when a Form 2.34B is received the registration date that is shown to the public is the date of the actual processing and registration not the date of receipt (i.e. the Registrar does not backdate). This date is then shown on Companies House search products as being the date on which the appointment of an administrator ceases to have effect and the date on which the liquidation commences. As a result of the Globespan judgment, the Registrar has amended the register for Globespan Airways Limited in accordance with the order of Briggs J. Following a decision and court order in a further case (Principle Leisure Midlands Limited on 13 April 2012), the Registrar will be amending the register in that case in which Briggs J’s judgment was applied by the Court. However the Registrar has issued an appellant’s notice in relation to the interpretation of paragraph 83 of the Globespan judgment and this is currently before the Court of Appeal (with a decision on permission currently awaited). The Registrar has considered his approach to the registration of Forms 2.34B in the light of Briggs J’s decision pending the appeal and has decided to maintain its pre-existing policy for the processing of Forms 2.34B. This means that the registration dates showing on Companies House search products will continue to be the date on which a Form 2.34B was actually registered and not the date on which it was received. It will follow that the administrator’s appointment end date and the liquidation commencement date will also show on Companies House search products as being that date. Should you wish to know the date upon which a Form 2.34B was received by the Registrar, this can be found on the document’s barcode, once the image is purchased. This position is different to the interpretation adopted in the Globespan judgment, which is why Companies House considers it important that searchers and filers are aware of the different possibilities when interacting with the register in relation to these forms. The decision to display the information in this way, pending the outcome of the appeal, has been the subject of careful consideration and advice. In so doing however, the Registrar is not seeking to assert the true legal position and intends no disrespect to the Court’s decision in Globespan. The true legal position will be a matter, we expect, for the Court of Appeal to determine in due course. In order to enable us to process Forms 2.34B as efficiently as possible, it would be helpful if these forms could be marked for the attention of the Liquidation Team. We will accept a Form 600 (Notice of Appointment of Liquidator), in cases where the company is converting from administration to creditors voluntary liquidation, after the submission of a Form 2.34B and giving a date of appointment that is the date of receipt or registration. The reason for this is that the Registrar would not wish to reject a properly delivered filing (as defined by s. 1072 of the Companies Act 2006) during this period of uncertainty. Following on from this and for the same reasons, we will accept a Form 4.68 (Liquidator’s Progress Report) with the prescribed period for which the liquidator must produce a progress report being 1 year commencing on the date of appointment of the liquidator, where that date relates either to the date of receipt or registration. In the same way we will accept a Form 4.72 and the liquidator’s final report, which requires the date of the opening and close of the winding up, with the opening of the winding up being either the date of receipt or the date of registration. Following the outcome of the appeal, it may be that alterations will need to be made to the Register and the Registrar’s processes, and a full review will take place at that time. Please note that the same policy will be applied to cases in Scotland and Northern Ireland pending the appeal, although the Globespan judgment only applies directly in England and Wales. We will communicate further as soon as we have an appeal date. Any queries relating to this can be directed to: Companies House 02920 380952/380184 Should you have any specific questions relating to the legislation, you should contact the Insolvency Service Policy Unit at Policy.Unit@insolvency.gsi.gov.uk |
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