Insolvency Act 1986, section 387

“The relevant date”

Part XII Preferential and non-preferential debts in Company and Individual Insolvency

(1)This section explains references in Schedule 6 to the relevant date (being the date which determines the existence and amount of a preferential debt).

(2)For the purposes of section 4 in Part I ( [F1036consideration ofF1036] company voluntary arrangement), the relevant date in relation to a company which is not being wound up is—

[F1037 (a)if the company is in administration, the date on which it entered administration, and

(b)if the company is not in administration, the date on which the voluntary arrangement takes effect.F1037]

F1038(2A). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(3)In relation to a company which is being wound up, the following applies—

(a)if the winding up is by the court, and the winding-up order was made immediately upon the discharge of an administration order, the relevant date is [F1039the date on which the company entered administrationF1039] ;

F1040(aa). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F1040(ab). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(b)F1041if the case does not fall within paragraph (a) ... and the company—

(i)is being wound up by the court, and

(ii)had not commenced to be wound up voluntarily before the date of the making of the winding-up order,

the relevant date is the date of the appointment (or first appointment) of a provisional liquidator or, if no such appointment has been made, the date of the winding-up order;

[F1042 (ba)if the case does not fall within paragraph (a) F1043... or (b) and the company is being wound up following administration pursuant to paragraph 83 of Schedule B1, the relevant date is the date on which the company entered administration;F1042]

(c)if the case does not fall within [F1044paragraph (a) F1045..., (b) or (ba)F1044] , the relevant date is the date of the passing of the resolution for the winding up of the company.

[F1046 (3A)In relation to a company which is in administration (and to which no other provision of this section applies) the relevant date is the date on which the company enters administration.F1046]

(4)In relation to a company in receivership (where section 40 or, as the case may be, section 59 applies), the relevant date is—

(a)in England and Wales, the date of the appointment of the receiver by debenture-holders, and

(b)in Scotland, the date of the appointment of the receiver under section 53(6) or (as the case may be) 54(5).

(5)For the purposes of section 258 in Part VIII (individual voluntary arrangements), the relevant date is, in relation to a debtor who is not an undischarged bankrupt

[F1047 (a)where an interim order has been made under section 252 with respect to his proposal, the date of that order, and

(b)in any other case, the date on which the voluntary arrangement takes effect.F1047]

(6)In relation to a bankrupt, the following applies—

(a)where at the time the bankruptcy order was made there was an interim receiver appointed under section 286, the relevant date is the date on which the interim receiver was first appointed after [F1048the making of the bankruptcy application or (as the case may be)F1048] the presentation of the bankruptcy petition;

(b)otherwise, the relevant date is the date of the making of the bankruptcy order.

Definitions used in section 387 4

the company

2 Section 233B does not apply in relation to a contract for the supply of goods or services to a company (“the company”) where any of paragraphs 3 to 11 applies.

Defined in Sch.4ZZA para.2 · see it in the full Act
in administration

(a) a company is “in administration” while the appointment of an administrator of the company has effect,

Defined in Sch.B1 para.1(2) · see it in the full Act
enters administration

(b) a company “enters administration” when the appointment of an administrator takes effect,

Defined in Sch.B1 para.1(2) · see it in the full Act
the debtor

(2) In Schedule 6 “the debtor” means the company or the individual concerned.

Defined in s.386(2) · see it in the full Act

Cases considering section 387 6

Lockston Group Inc v Wood

[2015] EWHC 2962 (Ch) · 27 October 2015

Applied as modified so that the existence and amount of preferential debts are determined by reference to the date of death. This confirms the single-date approach. (see para [38], [54])

Cartwright & Anor v The Registrar of Companies

[2012] EWCA Civ 1159 · 24 August 2012

The relevant date is used to calculate the four-month antecedent period for preferential claims. This illustrated the practical importance of identifying the correct conversion date (see paras [11]; [14]).

Buchler & Anor v Talbot & Ors

[2002] EWCA Civ 228 · 22 February 2002Defines

Cited to explain that the relevant date determines the existence and amount of a preferential debt, which may differ between receivership and liquidation. (see The position after the changes enacted in the Insolvency Act 1986)

What each judgment says about section 387 is in the case-law panel in the full Act.

Amendments and notes

18 notes from legislation.gov.uk

Amendments

  1. F1036Words in s. 387(2)(2A) substituted (26.5.2015 for specified purposes, 6.4.2017 for E.W. in so far as not already in force, 6.4.2019 for S. in so far as not already in force) by Small Business, Enterprise and Employment Act 2015 (c. 26), s. 164(1), Sch. 9 para. 55; S.I. 2015/1329, reg. 3(d); S.I. 2016/1020, reg. 4(e) (with reg. 5) (as amended by S.I. 2017/363, reg. 3); S.I. 2019/816, reg. 4(c) (with reg. 5)
  2. F1037S. 387(2)(a)(b) substituted (15.9.2003) by 2002 c. 40, ss. 248(3), 279, Sch. 17 para. 34(2) (with s. 249(1)-(3)(6)); S.I. 2003/2093, art. 2(1), Sch. 1 (subject to arts. 3-8 (as amended by S.I. 2003/2332, art. 2))
  3. F1038S. 387(2A) omitted (26.6.2020) by virtue of Corporate Insolvency and Governance Act 2020 (c. 12), s. 49(1), Sch. 3 para. 20 (with ss. 2(2), 5(2))
  4. F1039Words in s. 387(3)(a)(aa)(ab) substituted (15.9.2003) by 2002 c. 40, ss. 248(3), 279, Sch. 17 para. 34(3)(a) (with s. 249(1)-(3)(6)); S.I. 2003/2093, art. 2(1), Sch. 1 (subject to arts. 3-8 (as amended by S.I. 2003/2332, art. 2))
  5. F1040S. 387(3)(aa)(ab) omitted (31.12.2020) by virtue of The Insolvency (Amendment) (EU Exit) Regulations 2019 (S.I. 2019/146), reg. 1(3), Sch. para. 35(a) (with regs. 4, 5); 2020 c. 1, Sch. 5 para. 1(1)
  6. F1041Words in s. 387(3)(b) omitted (31.12.2020) by virtue of The Insolvency (Amendment) (EU Exit) Regulations 2019 (S.I. 2019/146), reg. 1(3), Sch. para. 35(b) (with regs. 4, 5); 2020 c. 1, Sch. 5 para. 1(1)
  7. F1042S. 387(3)(ba) inserted (15.9.2003) by 2002 c. 40, ss. 248(3), 279, Sch. 17 para. 34(3)(b) (with s. 249(1)-(3)(6)); S.I. 2003/2093, art. 2(1), Sch. 1 (subject to arts. 3-8 (as amended by S.I. 2003/2332, art. 2))
  8. F1043Words in s. 387(3)(ba) omitted (31.12.2020) by virtue of The Insolvency (Amendment) (EU Exit) Regulations 2019 (S.I. 2019/146), reg. 1(3), Sch. para. 35(c) (with regs. 4, 5); 2020 c. 1, Sch. 5 para. 1(1)
  9. F1044Words in s. 387(3)(c) substituted (15.9.2003) by 2002 c. 40, ss. 248(3), 279, Sch. 17 para. 34(3)(c) (with s. 249(1)-(3)(6)); S.I. 2003/2093, art. 2(1), Sch. 1 (subject to arts. 3-8 (as amended by S.I. 2003/2332, art. 2))
  10. F1045Words in s. 387(3)(c) omitted (31.12.2020) by virtue of The Insolvency (Amendment) (EU Exit) Regulations 2019 (S.I. 2019/146), reg. 1(3), Sch. para. 35(d) (with regs. 4, 5); 2020 c. 1, Sch. 5 para. 1(1)
  11. F1046S. 387(3A) inserted (15.9.2003) by 2002 c. 40, ss. 248(3), 279, Sch. 17 para. 34(4) (with s. 249(1)-(3)(6)); S.I. 2003/2093, art. 2(1), Sch. 1 (subject to arts. 3-8 (as amended by S.I. 2003/2332, art. 2))
  12. F1047S. 387(5)(a)(b) substituted (1.1.2003) for words in s. 387(5) by 2000 c. 39, s. 3, Sch. 3 para. 15; S.I. 2002/2711, art. 2 (subject to transitional provisions in arts. 3-5)
  13. F1048Words in s. 387(6)(a) inserted (6.4.2016) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 19 para. 56; S.I. 2016/191, art. 2 (with art. 3)

Modifications

  1. C1131S. 387 applied (7.2.1994) by 1993 c. 48, s. 128, Sch. 4 para. 4(1)(a); S.I. 1994/86, art. 2
  2. C1132S. 387 applied (with modifications) (17.2.2009 for certain purposes, otherwise 21.2.2009) by Banking Act 2009 (c. 1), ss. 103, 263(1)(2) (with s. 247); S.I. 2009/296, arts. 2, 3, Sch. para. 2
  3. C1133S. 387 applied (with modifications) (17.2.2009 for certain purposes, otherwise 21.2.2009) by Banking Act 2009 (c. 1), ss. 145, 263(1)(2) (with s. 247); S.I. 2009/296, arts. 2, 3, Sch. para. 3
  4. C1134S. 387 applied in part (with modifications) (8.7.2021) by The Payment and Electronic Money Institution Insolvency Regulations 2021 (S.I. 2021/716), regs. 2, 37, Sch. 1 para. 3 (with reg. 5) (as amended (4.1.2024) by S.I. 2023/1399, regs. 1(2), 4, 11)
  5. C1135S. 387(1)(5)(6) applied (with modifications) by S.I. 1986/1999, art. 3, Sch. 1 Pt. II