(1)This section applies in relation to a company or partnership of a kind described in section 362(1)(a) to (c).
(2)An administrator of the company or partnership may not be appointed under a provision specified in subsection (2A) without the consent of the appropriate regulator.
(2A)Those provisions are—
(a)paragraph 22 of Schedule B1 to the 1986 Act (including that paragraph as applied in relation to partnerships by order under section 420 of that Act);
(b)paragraph 23 of Schedule B1 to the 1989 Order (including that paragraph as applied in relation to partnerships by order under article 364 of that Order).
(2B)
“The appropriate regulator” means—
(a)where the company or partnership is a PRA-regulated person, the PRA, and
(b)in any other case, the FCA.
(3)Consent under subsection (2)—
(a)must be in writing, and
(b)must be filed with the court along with the notice of intention to appoint under paragraph 27 of [F2733 Schedule B1 to the 1986 Act or paragraph 28 of Schedule B1 to the 1989 OrderF2733] .
(4)In a case where no notice of intention to appoint is required—
(a)subsection (3)(b) shall not apply, but
(b)consent under subsection (2) must accompany the notice of appointment filed under paragraph 29 of [F2734 Schedule B1 to the 1986 Act or paragraph 30 of Schedule B1 to the 1989 OrderF2734] .
Cases considering section 362A (3)
[2020] EWHC 1133 (Ch) · 7 May 2020Interprets
Section 362A is construed with paragraph 29 of Schedule B1 as requiring written regulator consent by the time the notice of appointment is filed. The judge treated the requirement as going to the circumstances in which the appointment power arises and concluded, obiter, that breach made the purported appointment a nullity (see paras [94]-[119]).
Section 362A(1) brings companies within the regulatory-consent regime where they fall within section 362(1). The company’s status therefore triggered the consent requirement (see para [41]).
Section 362A(2) is interpreted as requiring the appropriate regulator’s consent before an administrator appointed under paragraph 22 of Schedule B1 can become effective. Retrospective consent does not satisfy the requirement; the nullity conclusion was obiter (see paras [94]-[97], [107], [119]).
Section 362A(2A) identifies paragraph 22 of Schedule B1 as an appointment provision subject to regulator consent. It supports the conclusion that the directors’ appointment required FCA consent (see para [41]).
Section 362A(3) requires consent to be in writing and filed with the court alongside the relevant notice. It supports the conclusion that consent must be lodged by the time the notice of appointment is filed (see paras [41], [97]-[100], [107]).
Section 362A(4) requires written consent to accompany the notice of appointment where no notice of intention to appoint is required. Its wording supports the conclusion that later consent is insufficient (see paras [98]-[100]).
[2012] EWHC 1178 (Ch) · 3 May 2012Interprets
Interprets section 362A as requiring the FSA’s written consent but not necessarily prior consent before appointment. Failure to obtain prior consent is a curable defect, and the appointment takes effect when the written consent is filed with the court (see paras [17]–[24]).
Interprets the prohibition on appointment without FSA consent as requiring consent, but not necessarily consent obtained before the purported appointment. The provision does not make the appointment incurably invalid where consent is later obtained (see paras [17]–[20]).
Confirms that the FSA’s consent must be in writing. The written form of consent was treated as part of the statutory mechanism governing the appointment (see paras [9], [19], [23]).
Applies the requirement that written FSA consent accompany the notice of appointment. Read with paragraphs 29(1)(b) and 31 of Schedule B1, it means that the appointment takes effect when the consent is filed with the court, assuming the notice has already been filed (see paras [22]–[24]).
[2010] EWHC 3751 (Ch) · 26 November 2010Interprets
The court treated section 362A as applying to the company and as requiring FSA consent before the directors’ appointment of administrators. (see paras [4]-[5]; [8]-[10])
The court applied subsection (2) as prohibiting appointment under paragraph 22 without the Authority’s consent. (see para [5])
The court held that subsection (3) required written FSA consent to be filed with the notice of intention to appoint and that the filing requirement was prescribed for paragraph 29(1)(b). Failure to comply invalidated the purported appointment. (see paras [5]; [8]-[10])
What each judgment says about section 362A is in the case-law panel in the full Act.