Insolvency Act 1986, section 72A

Floating charge holder not to appoint administrative receiver

Part III Receivership

(1)The holder of a qualifying floating charge in respect of a company’s property may not appoint an administrative receiver of the company.

(2)In Scotland, the holder of a qualifying floating charge in respect of a company’s property may not appoint or apply to the court for the appointment of a receiver who on appointment would be an administrative receiver of property of the company.

(3)In subsections (1) and (2)—

  • “holder of a qualifying floating charge in respect of a company’s property” has the same meaning as in paragraph 14 of Schedule B1 to this Act, and

  • “administrative receiver” has the meaning given by section 251.

(4)This section applies—

(a)to a floating charge created on or after a date appointed by the Secretary of State by order made by statutory instrument, and

(b)in spite of any provision of an agreement or instrument which purports to empower a person to appoint an administrative receiver (by whatever name).

(5)An order under subsection (4)(a) may—

(a)make provision which applies generally or only for a specified purpose;

(b)make different provision for different purposes;

(c)make transitional provision.

(6)This section is subject to the exceptions specified in [F187 sections 72B to 72GAF187] .

Definitions used in section 72A 2

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
agreement

4 For the purposes of sections 72B and 72E and this Schedule “agreement” includes an agreement or undertaking effected by—

(a)contract,

(b)deed, or

(c)any other instrument intended to have effect in accordance with the law of England and Wales, Scotland or another jurisdiction.

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

(2) “Agreement” includes any agreement or undertaking effected by—

(a)contract,

(b)deed, or

(c)any other instrument intended to have effect in accordance with the law of England and Wales, Scotland or another jurisdiction.

Defined in Sch.ZA1 para.19(2) · see it in the full Act

Cases considering section 72A 4

Cabvision Ltd v Feetum & Ors

[2005] EWCA Civ 1601 · 20 December 2005

The provision generally prohibits the holder of a qualifying floating charge from appointing an administrative receiver. Because no statutory exception applied, it prohibited the appointments in question and rendered them invalid (see paras [33]; [93]; [97]).

Bevan v Paul Walker the Company & Anor

[2018] EWHC 265 (Ch) · 15 February 2018Defines

Applies the provision adopting the meaning of holder of a qualifying floating charge from paragraph 14 of Schedule B1. The court held that the HSBC charge satisfied that meaning notwithstanding its apparent lack of present enforceability. (see paras [5]-[6])

Dairy Farmers of Britain Ltd, Re

[2009] EWHC 1389 (Ch) · 18 June 2009Interprets

Section 72A(1) does not prohibit a qualifying floating-charge holder from appointing receivers over an industrial and provident society, because the society is not a “company” within Part III (see paras [2]-[4], [20]-[24], [37]-[38]). The court noted that the prohibition applies despite contractual wording only where section 72A otherwise applies. Since an industrial and provident society is outside the relevant meaning of “company”, subsection (4) did not affect the proposed appointments (see para [20]).

What each judgment says about section 72A is in the case-law panel in the full Act.

Amendments and notes

3 notes from legislation.gov.uk

Amendments

  1. F187Words in s. 72A(6) substituted (15.9.2003) by The Insolvency Act 1986 (Amendment) (Administrative Receivership and Urban Regeneration etc.) Order 2003 (S.I. 2003/1832), arts. 1, 2(a); S.I. 2003/2093, art. 2(1), Sch. 1

Modifications

  1. C248S. 72A 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), 46 (with reg. 64)

Subordinate legislation made

  1. P1S. 72A(4)(a) power exercised: 15.9.2003 appointed for specified purposes by The Insolvency Act 1986, Section 72A (Appointed Date) Order 2003 (S.I. 2003/2095), art. 2