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Connected and Associated: Insolvency and Pensions Law

Connected and Associated: Insolvency and Pensions Law

Author: David Pollard
Publisher: Bloomsbury Professional (formerly Tottel Publishing)
ISBN: 9781526519597
Published In: December 2021
Format: Hardback
Jurisdiction: U.K. ? Disclaimer:
Countri(es) stated herein are used as reference only

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This book is the first looking in detail at the meaning and ambit of the 'connected', 'associated' and 'control' tests used in the Insolvency Act 1986 in sections 249 and 435 and incorporated by reference in pensions legislation.

Insolvency and pensions legislation has, in a number of areas, sought to include a wider group of “linked” persons for statutory purposes. In practice, the pensions legislation does not include a completely new definition of such a linked person, but instead uses the existing definitions found in the Insolvency Act 1986. These tests are important in insolvency law in relation to issues such as voting in company voluntary arrangements and time limits for reversal or clawback of pre insolvency transactions (eg undue preferences or transactions at an under value). These definitions in IA 1986 have become of particular importance when incorporated in pensions legislation. The tests are incorporated in various areas of pensions law. The two most important of which are:

the moral hazard powers of the Pensions Regulator under Part 1 of the Pensions Act 2004. Broadly the Pensions Regulator has statutory power to issue either contribution notices -CNs (PA 2004, s38) or financial support directions - FSDs (PA 2004, s43) against third parties (i.e. not just the employer) in certain circumstances. But this power is limited to being only exercised against third parties who are connected or associated with an employer. The connected or associated test is the condition to liability (there are others) that is most objective and easiest to determine
Limits are imposed on investment by relevant occupational pension schemes in investment which are “employer-related” (PA 1995, s40 and regulations). These are defined as investments in an employer or any person associated or connected with an employer. In some circumstances investment contrary to the limits is a criminal offence

PART 1: INTRODUCTION

1. Introduction

2. Outline: the 'connected' or 'associated' test

3. Why does being 'associated' or 'connected' matter?

PART 2: INTERPRETING SS239 AND 435

4. Interpretation Principles

5. Other statutes: defining control or associate?

6. Interpreting ss249 and 435: Hansard

7. Interpreting ss249 and 435: Cork Report and Scots law

8. What do the definitions mean? Who do they apply to?

PART 3: OVERVIEW OF WHEN CONNECTION, ASSOCIATION OR CONTROL IS USED

9. Insolvency legislation

10. Insolvency: Reversible transactions

11. Insolvency: CVAs and IVAs

12. Insolvency: Other provisions

13. Pensions legislation: Moral hazard provisions of the Pensions Act 2004

14. Pensions legislation: Employer-related investment

15. Pensions Schemes Bill 2019/20

16. Pensions legislation: other provisions

17. Interpretation: The rationale behind definitions in ss249 and 435

PART 4: CONNECTED

18. The terms 'connected' and 'associated': general

19. Who is connected?

PART 5: DIRECTORS, EMPLOYERS AND EMPLOYEES

20. Directors

21. Shadow directors and de facto directors

22. Common directorships - connected

23. Employers and employees

24. Officers and managers

PART 6: ASSOCIATES

25. Who is an associate?

26. Associate - individuals

27. Trusts and trustees – s435(5)

28. Partners – s435(3)

29. Limited liability partnerships (LLPs) – s 435(3A)

30. Capacity of association or connection?

31. Associate - companies

PART 7: CONTROL

32. “Control” as defined in s435(10)

PART 8: CONTROL THROUGH VOTING POWER - s435(10)(B)

33. Voting power – Unidare and Box Clever cases

34. Voting power – Nominees and custodians

35. Share mortgages

36. What is voting power 'at any general meeting'?

37. Are groups of shareholders aggregated for control purposes?

PART 9: CONTROL THROUGH 'DOMINATION' OF DIRECTORS - s435(10)(a)

38. Comparing s435(10)(a) with the shadow director definition in s251

39. What does “accustomed to act” mean?

40. Can advisers have 'control'? Is the shadow director test for advisers different from the control test?

41. Is 'domination' of a single director enough?

42. Appointors of nominee directors or board representatives

PART 10: CONTROL AFTER INSOLVENCY?

43. Is control lost if the company enters insolvency?

45. What is the effect if a company enters into an insolvency process?: example

46. Insolvency and 'Dominated' Directors – s435(10)(a)

47. Insolvency and 'voting power in any general meeting' – s435(10)(b)

48. Insolvency: Are any shareholder general meetings actually held?

49. Statutory trust on a liquidation

52. Administrative receivership: Box Clever

53. Look at term being defined?

54. Liquidation: Linter Textiles

55. Summary of position on “voting power” in insolvency

56. Application to examples

57. Backstop on impact of insolvency on Control

PART 11: MAIN CONCLUSIONS on Control

58.

Section 435(10) control is important

PART 12: WHO IS NOT CONNECTED OR ASSSOCIATED?

59. Not connected or associated?

60. Share mortgages

61. Equitable mortgage

62. Legal mortgage

63. Ability to declare an event of default/acceleration?

64. Purchasers of companies or businesses – pension connections

PART 13: CVAS AND IVAS – CONNECTED CREDITORS

65. OPS Trustees as a connected creditor?

66. Is the OPS trustee connected with the CVA company?

67. OPS Trustee company as a connected creditor?

68. Individual OPS trustee board as a connected creditor

69. Impact of PPF powers under PA 2004, s137 on connection?

Appendix A: Legislation – ss249 and 435, IA 1986

Appendix B: Company Law Review Steering Group (2000)

Appendix C: What are the terms used for in the insolvency legislation?

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