Insolvency Act 1986, section 4

Decisions of the company and its creditors

Part I Company Voluntary Arrangements

[F23 (1)This section applies where, under section 3—

(a)a meeting of the company is summoned to consider the proposed voluntary arrangement, and

(b)the company's creditors are asked to decide whether to approve the proposed voluntary arrangement.

(1A)The company and its creditors may approve the proposed voluntary arrangement with or without modifications.F23]

(2)F24The modifications may include one conferring the functions proposed to be conferred on the nominee on another person qualified to act as an insolvency practitioner ... [F25in relation to the voluntary arrangementF25] .

But they shall not include any modification by virtue of which the proposal ceases to be a proposal such as is mentioned in section 1.

(3)[F26 Neither the company nor its creditors mayF26] approve any proposal or modification which affects the right of a secured creditor of the company to enforce his security, except with the concurrence of the creditor concerned.

(4)Subject as follows, [F27neither the company nor its creditors mayF27] approve any proposal or modification under which—

(a)F28any preferential debt of the company is to be paid otherwise than in priority to such of its debts as are not preferential debts, ...

[F29 (aa)any ordinary preferential debt of the company is to be paid otherwise than in priority to any secondary preferential debts that it may have,F29]

(b)a preferential creditor of the company is to be paid an amount in respect of [F30an ordinary preferential debtF30] that bears to that debt a smaller proportion than is borne to [F31another ordinaryF31] preferential debt by the amount that is to be paid in respect of that other debt [F32, F33...

(c)a preferential creditor of the company is to be paid an amount in respect of a secondary preferential debt that bears to that debt a smaller proportion than is borne to another secondary preferential debt by the amount that is to be paid in respect of that other debt.F32][F34 or

(d)in the case of a company which is a relevant financial institution (see section 387A), any non-preferential debt is to be paid otherwise than in accordance with the rules in section 176AZA(2) or (3).F34]

F35,F37However, ... such a proposal or modification [F36may be approvedF36] with the concurrence of the ... creditor concerned.

[F38 (4A)Subject to subsection (4B), where the nominee’s report under section 2(2) is submitted to the court before the end of the period of 12 weeks beginning with the day after the end of any moratorium for the company under Part A1, neither the company nor its creditors may approve any proposal or modification under which the following are to be paid otherwise than in full—

(a)moratorium debts (within the meaning given by section 174A);

(b)priority pre-moratorium debts (within the meaning given by section 174A).

(4B)Subsection (4A) does not prevent the approval of such a proposal or modification with the concurrence of the creditor concerned.F38]

(5)Subject as above, [F39the meeting of the company and the qualifying decision procedureF39] shall be conducted in accordance with the rules.

(6)After the conclusion of [F40the companyF40] meeting in accordance with the rules, the chairman of the meeting shall report the result of the meeting to the court, and, immediately after reporting to the court, shall give notice of the result of the meeting to such persons as may be prescribed.

[F41 (6A)After the company's creditors have decided whether to approve the proposed voluntary arrangement the person who sought the decision must—

(a)report the creditors' decision to the court, and

(b)immediately after reporting to the court, give notice of the creditors' decision to such persons as may be prescribed.F41]

(7)References in this section to preferential debts [F42, ordinary preferential debts, secondary preferential debtsF42] and preferential creditors are to be read in accordance with section 386 in Part XII of this Act.

Definitions used in section 4 5

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
company

(4) In this Part “company” means—

(a)a company registered under the Companies Act 2006 in England and Wales or Scotland;

(b)a company incorporated in an EEA State ...; or

(c)a company not incorporated in an EEA State but having its centre of main interests in a member State (other than Denmark) or in the United Kingdom .

Defined in s.1(4) · see it in the full Act
ordinary preferential debts

(1A) A reference in this Act to the “ordinary preferential debts” of a company or an individual is to the preferential debts listed in any of paragraphs 8 to 15B of Schedule 6 to this Act.

Defined in s.386(1A) · see it in the full Act
secondary preferential debts

(1B) A reference in this Act to the “secondary preferential debts” of a company or an individual is to the preferential debts listed in paragraph 15BA , 15BB or 15D of Schedule 6 to this Act.

Defined in s.386(1B) · see it in the full Act
relevant financial institution

(1) In this Act “relevant financial institution” means any of the following—

(a)a credit institution,

(b)an investment firm,

(c)a financial holding company,

(d)a mixed financial holding company,

(da)an investment holding company,

(e)a financial institution which is—

(i)a subsidiary of an entity referred to in paragraphs (a) to (da), and

(ii)covered by the supervision of that entity on a consolidated basis by the Financial Conduct Authority in accordance with Part 9C rules or by the Prudential Regulation Authority in accordance with Regulation (EU) No 575/2013 of the European Parliament and of the Council of 26 June 2013 on prudential requirements for credit institutions and investment firms or CRR rules, or,

(f)a mixed-activity holding company.

Defined in s.387A(1) · see it in the full Act

Cases considering section 4 11

Thomas v Ken Thomas Ltd

[2006] EWCA Civ 1504 · 9 October 2006Limits

The provision governed decisions approving a voluntary arrangement and identified the creditor interests which could not be affected without consent. This supported rejection of any special hybrid status for a landlord holding a right of re-entry. (see paras [32]; [43]) The court relied on the protection given to secured creditors as part of its conclusion that the Act expressly identifies which creditors escape the ordinary binding effect of a voluntary arrangement. A landlord’s right of re-entry did not confer that status. (see paras [32]; [43]) The court treated the qualified protection for preferential creditors as further evidence that the Act specifies the classes which may avoid modification without consent. It supplied no equivalent protection for a landlord merely holding a right of forfeiture. (see paras [32]; [43])

Inland Revenue v Wimbledon Football Club Ltd & Ors Rev 2

[2004] EWCA Civ 655 · 28 May 2004Interprets

The court treated section 4 as the framework governing approval of a proposal and statutory restrictions on what creditors may approve. (see paras [28]-[29]; [47]-[49]) Cited only. Cited only. The court referred to section 4(3) as part of the statutory restrictions mirrored in the administration regime. (see para [58]) The court construed section 4(4) in its statutory and commercial context, focusing on priority claims against company assets rather than independent third-party funds. (see paras [47]-[60]; [66]-[72]) The court held that section 4(4)(a) was not infringed where a purchaser paid non-preferential debts from its own money, without reducing the price payable to the company or funding the payments from company assets. (see paras [47]-[60]; [61]-[72]) Cited only. Cited only.

Lazari Properties 2 Ltd & Ors v New Look Retailers Ltd & Ors

[2021] EWHC 1209 (Ch) · 10 May 2021

A CVA cannot affect a secured creditor’s right to enforce security without that creditor’s concurrence. The court treated the secured noteholders’ release of security as part of the wider restructuring and as justification for their different treatment. The provision confirms that preferential creditors’ priority must be respected unless they agree otherwise. It supported the conclusion that different treatment required by the statutory priority scheme is not inconsistent with equality.

What each judgment says about section 4 is in the case-law panel in the full Act.

Amendments and notes

25 notes from legislation.gov.uk

Amendments

  1. F22Words in s. 4 heading 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. 4(8); 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. F23S. 4(1)(1A) substituted for s. 4(1) (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. 4(2); 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)
  3. F24Words in s. 4(2) omitted (1.10.2015) by virtue of Deregulation Act 2015 (c. 20), s. 115(7), Sch. 6 para. 20(2)(c); S.I. 2015/1732, art. 2(e)(vi)
  4. F25Words in s. 4(2) substituted (1.1.2003) by 2000 c. 39, s. 2, Sch. 2 Pt. I para. 4; S.I. 2002/2711, art. 2 (subject to transitional provisions in arts. 3-5)
  5. F26Words in s. 4(3) 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. 4(3); 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)
  6. F27Words in s. 4(4) 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. 4(4)(a); 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)
  7. F28Word in s. 4(4)(a) omitted (1.1.2015) by virtue of The Banks and Building Societies (Depositor Preference and Priorities) Order 2014 (S.I. 2014/3486), arts. 1(2), 4(2)(a) (with art. 3)
  8. F29S. 4(4)(aa) inserted (1.1.2015) by The Banks and Building Societies (Depositor Preference and Priorities) Order 2014 (S.I. 2014/3486), arts. 1(2), 4(2)(b) (with art. 3)
  9. F30Words in s. 4(4)(b) substituted (1.1.2015) by The Banks and Building Societies (Depositor Preference and Priorities) Order 2014 (S.I. 2014/3486), arts. 1(2), 4(2)(c)(i) (with art. 3)
  10. F31Words in s. 4(4)(b) substituted (1.1.2015) by The Banks and Building Societies (Depositor Preference and Priorities) Order 2014 (S.I. 2014/3486), arts. 1(2), 4(2)(c)(ii) (with art. 3)
  11. F32S. 4(4)(c) and word inserted (1.1.2015) by The Banks and Building Societies (Depositor Preference and Priorities) Order 2014 (S.I. 2014/3486), arts. 1(2), 4(2)(d) (with art. 3)
  12. F33Word in s. 4(4)(b) omitted (19.12.2018) by virtue of The Banks and Building Societies (Priorities on Insolvency) Order 2018 (S.I. 2018/1244), arts. 1(2), 5(a) (with art. 3)
  13. F34S. 4(4)(d) and word inserted (19.12.2018) by The Banks and Building Societies (Priorities on Insolvency) Order 2018 (S.I. 2018/1244), arts. 1(2), 5(b) (with art. 3)
  14. F35Words in s. 4(4) omitted (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 virtue of Small Business, Enterprise and Employment Act 2015 (c. 26), s. 164(1), Sch. 9 para. 4(4)(b); 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)
  15. F37Word in s. 4(4) omitted (19.12.2018) by virtue of The Banks and Building Societies (Priorities on Insolvency) Order 2018 (S.I. 2018/1244), arts. 1(2), 5(c) (with art. 3)
  16. F36Words in s. 4(4) inserted (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. 4(4)(c); 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)
  17. F38S. 4(4A)(4B) inserted (26.6.2020) by Corporate Insolvency and Governance Act 2020 (c. 12), s. 49(1), Sch. 3 para. 4(2) (with ss. 2(2), 5(2))
  18. F39Words in s. 4(5) 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. 4(5); 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)
  19. F40Words in s. 4(6) 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. 4(6); 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)
  20. F41S. 4(6A) inserted (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. 4(7); 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)
  21. F42Words in s. 4(7) inserted (1.1.2015) by The Banks and Building Societies (Depositor Preference and Priorities) Order 2014 (S.I. 2014/3486), arts. 1(2), 4(3) (with art. 3)

Modifications

  1. C92Ss. 1-7B applied (with modifications) (E.W.) (15.3.2024) by The Water Industry (Special Administration) Regulations 2024 (S.I. 2024/205), regs. 2(2), 5(1), 43-45 (with reg. 64)
  2. C93Ss. 2-6 applied (with modifications) by 2009 c. 1, s. 154(3A) (as inserted (13.3.2018) by The Small Business, Enterprise and Employment Act 2015 (Consequential Amendments, Savings and Transitional Provisions) Regulations 2018 (S.I. 2018/208), regs. 1(3), 5(6)(c))
  3. C95S. 4 modified (20.4.2003) by The Insurers (Reorganisation and Winding Up) Regulations 2003 (S.I. 2003/1102), reg. 33(1)(2) (with reg. 3)
  4. C96S. 4 modified (28.12.2020 until IP completion day when the amending provision ceases to have effect in accordance with reg. 1(4) of the amending S.I.) by The Bank Recovery and Resolution (Amendment) (EU Exit) Regulations 2020 (S.I. 2020/1350), regs. 1(4), 110 (with reg. 108)