Esken Limited (Overseas Company Number FC041629), Re

A company incorporated outside the United Kingdom may move from administration to creditors’ voluntary liquidation under paragraph 83 of Schedule B1 to the Insolvency Act 1986 where it falls within the statutory definition of “company”, including because its centre of main interests is in the United Kingdom.

The restrictions in section 221(4), contained in Part V of the Act concerning the winding up of unregistered companies, do not govern that distinct statutory route. The liquidation takes effect when the administrator’s notice is registered. The court may subsequently confirm the winding up for the purposes of the applicable insolvency regulation.

Esken Limited was incorporated in Guernsey but had its centre of main interests in England. Its directors appointed administrators in England. After the administration, the administrators sent a notice under paragraph 83 of Schedule B1 to the Insolvency Act 1986, which was registered by the Registrar of Companies and moved Esken into creditors’ voluntary liquidation.

The joint liquidators applied under rule 21.4 of the Insolvency (England and Wales) Rules 2016 for confirmation of the winding up. The central issue was whether section 221(4) of the Act prevented an overseas company from entering voluntary liquidation through paragraph 83 of Schedule B1.

1. Application granted. The court confirmed Esken’s creditors’ voluntary winding up for the purposes of the applicable insolvency regulation.
2. Paragraph 111(1A) of Schedule B1 defines “company” to include a company not incorporated in an EEA State but having its centre of main interests in the United Kingdom. On the evidence, Esken fell within that definition. Its main operations and administration were conducted in England, and this was known to key creditors and ascertainable by third parties.
3. That definition applies to paragraph 83 of Schedule B1. Paragraph 83 therefore permitted Esken to move from administration to voluntary liquidation through the prescribed notice procedure. Under paragraph 83(6), the appointment of the administrator ceased on registration of the notice and the company was wound up as if a resolution for voluntary winding up under section 84 had been passed on that date.
4. Section 221(4) did not prevent that result. Section 220 defines an “unregistered company” for Part V of the Act, which concerns winding up by the court. Part V does not overlap with, interact with or duplicate Schedule B1. It contains no provision governing the exit from administration by the paragraph 83 route.
5. The decision in Re TXU Europe German BV [2005] BCC 90 was materially distinguishable. It concerned voluntary liquidations commenced by special resolutions under section 84, rather than a liquidation arising automatically from registration of a paragraph 83 notice.
6. The court left open questions concerning how section 221(4) might operate with the Retained EU Regulation in other circumstances. Those questions did not affect the present application. The prescribed information and documents had been provided, and the registration date supplied the date on which the deemed resolution took effect.