Part 4 Table of applied provisions of the 1989 Order

This Article is to be read as if—

1. (a)

   the definition of “the registrar” were omitted; and;

2. (b)

   after paragraph (1) there were inserted—

   “(2)

   In Parts 5, 6 and 7—

   (a)

   a reference to the depositary of a relevant scheme is a reference to the depositary (within the meaning given in section 237(2) of the Financial Services and Markets Act 2000 (“FSMA”)) of that scheme;

   (b)

   a reference to the operator of a relevant scheme is a reference to the operator (within the meaning given in section 237(2) of FSMA) of that scheme;

   (c)

   a reference to the participants in a relevant scheme is a reference to the participants (within the meaning given in section 235(2) of FSMA) in that scheme;

   (d)

   a reference to the registrar is to be read as a reference to the Financial Conduct Authority; and

   (e)

   a reference to—

   (i)

   a relevant scheme,

   (ii)

   a creditor or a debt of a relevant scheme, or

   (iii)

   the operator or the depositary in relation to a relevant scheme which is a sub-scheme of an umbrella co-ownership scheme,

   is to be construed in accordance with regulation 17(1) of the Collective Investment in Transferable Securities (Contractual Scheme) Regulations 2013.”.

This Article is to be read as if—

1. (a)

   in paragraph (2), for the words from “it passes a resolution” to the end there were substituted “an order for its winding up is made by the High Court”; and

2. (b)

   paragraph (3) were omitted.

In paragraph (1) the reference to the company is to be read as a reference to the operator.

This Article is to be read as if paragraph (4) were omitted.

In paragraph (3)(a) the reference to officers of the company is to be read as a reference to the operator and the depositary.

Paragraph (3) is to be read as if sub-paragraphs (c) and (d) were omitted.

Paragraph (1) is to be read as if for sub-paragraph (b) there were substituted—

“(b)

has acted as liquidator of the relevant scheme;”.

Paragraph (1) is to be read as if the words “, subject to Article 119,” were omitted.

This Article is to be read as if for paragraphs (3) and (4) there were substituted—

“(3)

The liquidator shall be the person (if any) nominated by the creditors.”.

Paragraph (2) is to be read as if after the words “the official receiver” there were inserted “or the liquidator”.

In paragraph (3) the reference to the company is to be read as a reference to the operator.

In this Article—

1. (a)

   a reference to a person claiming under the company as underlessee or mortgagee is to be read as a reference to a person claiming as underlessee or mortgagee under the leasehold title which is held by the depositary (or a person nominated by the depositary to hold the leasehold title); and

2. (b)

   a reference to the company, in relation to any reference to liabilities, obligations, estates, incumbrances or interests, is to be read as a reference to the lessee.

This Article is to be read as if for paragraphs (1) and (2) there were substituted—

“(1)

When a relevant scheme is being wound up by the High Court—

(a)

every business letter (whether in hard copy, electronic or any other form) issued by the operator, the depositary or a liquidator of the relevant scheme, and

(b)

any website which relates to the relevant scheme and for which the operator or the depositary is responsible,

must contain a statement that the relevant scheme is being wound up.

(2)

If default is made in complying with this Article, any of the following persons who knowingly and wilfully authorises or permits the default, namely, the operator, the depositary and any liquidator of the relevant scheme, shall be guilty of an offence.”.

In paragraph (1)(a) the reference to a debt due to the company is to be read as a reference to a debt which is, or may become, payable to the operator in respect of any liability (including any contingent or prospective liability) incurred under an authorised contract.

This Article is to be read as if paragraph (3) were omitted.

In paragraphs (1) and (2) a reference to a director of a company is to be read as a reference to the operator or depositary of a relevant scheme.

This Article is to be read as if—

1. (a)

   after paragraph (2) there were inserted—

   “(2A)

   The condition specified in paragraph (2)(b) is taken to be satisfied in relation to the operator or depositary of a relevant scheme if, at some time before the commencement of the winding up, a director or employee of the operator or depositary knew or ought to have concluded that there was no reasonable prospect that the relevant scheme would avoid going into insolvent liquidation”; and

2. (b)

   paragraph (7) were omitted.

This Article is to be read as if—

1. (a)

   paragraph (2) were omitted;

2. (b)

   in paragraph (3) the words “, except in accordance with the EC Regulation” were omitted; and

3. (c)

   in paragraph (4)—

   1. (i)

      sub-paragraph (a) were omitted; and

   2. (ii)

      for sub-paragraph (b) there were substituted—

      “(b)

      if the operator of a relevant scheme is unable to pay the debts of that scheme out of the property subject to it.”.

In paragraph (1)(a) and (b) each reference to the company is to be read as a reference to the operator.

Paragraph (1)(a) is to be read as if the words “in Northern Ireland” were omitted.

Paragraph (3) is to be read as if—

1. (a)

   in sub-paragraph (a) the reference to officers of the company included a reference to the operator and the depositary; and

2. (b)

   sub-paragraphs (c) and (d) were omitted.

In paragraph (2)(b) the reference to any person supposed to be indebted to the company is to be read as a reference to a person by whom, it is supposed, a debt is, or may become, payable to the operator in respect of any liability (including any contingent or prospective liability) incurred under an authorised contract.

In paragraph (3) the reference to dealings with the company is to be read as a reference to dealings with any matter affecting or relating to the affairs of, or the property subject to, the relevant scheme.

In paragraphs (2) and (3) the reference to the company is to be read as a reference to the operator or the depositary.

In paragraph (4)—

1. (a)

   in sub-paragraphs (a) and (b) the second reference to the company is to be read as a reference to the participants in a relevant scheme; and

2. (b)

   each other reference to a company is to be read as a reference to the operator or depositary of the relevant scheme.

Paragraph (5) is to be read as if for sub-paragraph (a) there were substituted—

“(a)

that the operator or the depositary, in entering into the transaction, did so in good faith and for the purposes of carrying on the business of the relevant scheme, and”.

In paragraphs (2) and (3) the reference to the company is to be read as a reference to the operator or the depositary.

Paragraph (4) is to be read as if for the words from “a company” to the end there were substituted—

“the operator or depositary of a relevant scheme gives a preference to a person if—

(a)

that person is one of the creditors of the relevant scheme or a surety or guarantor for any of the debts or liabilities of the relevant scheme, and

(b)

the operator or depositary does anything or suffers anything to be done which (in either case) has the effect of putting that person into a position which, in the event of the relevant scheme going into insolvent liquidation, will be better than the position that person would have been in if that thing had not been done.”.

In paragraph (5) the reference to the company which gave the preference is to be read as a reference to the operator or the depositary in giving the preference.

In paragraph (6)—

1. (a)

   the first reference to a company is to be read as a reference to the operator or depositary of a relevant scheme; and

2. (b)

   the reference to a person connected with the company is to be read as a reference to a person who is an associate (within the meaning of Article 4) of the operator or depositary of the relevant scheme.

In paragraphs (1) and (2)—

1. (a)

   a reference to a company, except the second reference in paragraph (2), is to be read as a reference to the operator or depositary of a relevant scheme; and

2. (b)

   the reference to a person who is connected with the company is to be read as a reference to a person who is an associate (within the meaning of Article 4) of the operator or depositary of the relevant scheme.

In this Article a reference to a company is to be read as a reference to the operator or the depositary, except—

1. (a)

   in paragraph (1)(a), where the reference to the company is to be read as a reference to the liquidator of the relevant scheme;

1. (b)

   in paragraph (1)(c), where the reference to security given by the company is to be read as a reference to security over any property subject to the relevant scheme;

2. (c)

   in paragraph (1)(g), where the first reference to the company is to be read as a reference to the liquidator of the relevant scheme;

3. (d)

   in paragraph (2), with respect to the reference to a creditor of the company; and

4. (e)

   in paragraph (3C).

Article 373 (prosecution and punishment of offences)

Article 374 (summary proceedings)

Schedule 2 is to be read as if—

1. (a)

   paragraphs 9 and 12 were omitted;

2. (b)

   the power in paragraph 4 included a power to bring or defend any action or other legal proceeding which would otherwise be brought or defended by the operator on behalf of the participants;

3. (c)

   the power in paragraph 8 included a power to do all acts and execute all deeds, receipts and other documents which would otherwise be done or executed by the operator on behalf of the participants; and

4. (d)

   the power in paragraph 10 included a power to draw, accept, make and indorse any bill of exchange or promissory note with the same effect as if the bill or note had been drawn, accepted, made or indorsed by the operator in the course of the business of the relevant scheme.