Connected and Associated: Insolvency and Pensions Law

David Pollard is a leading and highly experienced lawyer in the insolvency and pensions fields and in related areas. He is a barrister, practising from Wilberforce Chambers in Lincoln’s Inn, and previously practised for 37 years as a solicitor in London and Singapore. David's practice focuses on pensions law; insolvency law and; employment law (involving pensions). He was Chairman of the Association of Pension Lawyers (APL) from 2001 to 2003 and has been a vice chair of the Industrial Law Society.

• PART 1: INTRODUCTION 1. Introduction 2. Outline: the ‘ connected ’ or ‘ associated ’ test 3. Why does being ‘ associated’ or ‘ connected’ matter? PART 2: INTERPRETING SECTIONS 239 AND 435 4. Overview of Interpretation Principles 5. Other statutes: defining control or associate ? 6. Interpreting ss 249 and 435: Hansard 7. Interpreting ss 249 and 435: Cork Report and government response 8. Interpreting ss 249 and 435: Scots law and laws of other jurisdictions 9. What do the defi nitions mean ? Who do they apply to ? PART 3: USES OF CONNECTION, ASSOCIATION OR CONTROL 10. Insolvency legislation 11. Insolvency: Reversible transactions 12. Insolvency: creditor votes in CVAs and IVAs and Part A1 moratorium Part A1 Moratorium extension votes 13. Insolvency: disposals by administrators to connected persons: 2021 Regs 14. Pensions legislation: Moral hazard provisions of the Pensions Act 2004 15. Pensions legislation: Employer-related investment – PA 1995, s 40 16. Pensions legislation: Notifi able events – PA 2004, ss 69 and 69A 17. Pensions legislation: other provisions PART 4: CONNECTED 18. The terms ‘ connected ’ and ‘ associated ’ : general 19. Who is connected ? : persons and companies 20. Connected persons: IA 1986, Sch B1, para 60A PART 5: DIRECTORS, EMPLOYERS AND EMPLOYEES 21. Directors and de facto directors 22. Shadow directors 23. Common directorships – connected 24. Employers and employees 25. Officers and managers PART 6: ASSOCIATES 26. Who is an associate ? 27. Associate – individuals 28. Trusts and trustees – s 435(5) 29. Pension scheme as a trust – s 435(5)(b) 30. Other trusts: Employee Share Schemes and Charities 31. Partners – s 435(3) 32. Limited liability partnerships (LLPs) – s 435(3A) 33. Is the capacity of association or connection relevant ? 34. Associate – companies PART 7: CONTROL 35. ‘ Control ’ as defined in s 435(10) PART 8: CONTROL THROUGH VOTING POWER – S 435(10)(B) 36. Voting power – Unidare and Box Clever cases 37. Voting power – Nominees and custodians 38. Share mortgages 39. What is voting power ‘ at any general meeting ’ ? 40. Are groups of shareholders aggregated for control purposes ? 41. Timing of control – eg on share sales ? PART 9: CONTROL THROUGH ‘ DOMINATION ’ OF DIRECTORS – S 435(10)(A) 42. Comparing s 435(10)(a) with the shadow director definition in s 251 43. What does ‘ accustomed to act ’ mean ? 44. Can advisers have ‘ control ’ ? Is the shadow director test for advisers different from the control test ? 45. Is ‘ domination ’ of a single director enough ? 46. Appointors of nominee directors or board representatives PART 10: CONTROL AFTER INSOLVENCY ? 47. Is existing control lost if the company enters insolvency ? 48. Insolvency and control: Existing case law 49. What is the effect if a company enters into an insolvency process ? : example 50. Insolvency and ‘ Dominated ’ Directors – s 435(10)(a) 51. Insolvency and ‘ voting power in any general meeting ’ – s 435(10)(b) 52. Insolvency: Are any shareholder general meetings actually held ? 53. Statutory trust on a liquidation: Ayerst 54. ‘ Control ’ in other contexts: Tax law 55. ‘ Control ’ in other contexts: Employment law 56. Administrative receivership: Box Clever 57. Look at term being defined ? 58. Liquidation: Linter Textiles 59. Summary of position on ‘ voting power ’ in insolvency 60. Application to examples 61. Summary on impact of insolvency on Control PART 11: MAIN CONCLUSIONS ON CONTROL 62. Section 435(10) control is important PART 12: WHO IS NOT CONNECTED OR ASSSOCIATED ? 63. Not connected or associated ? 64. Purchasers of companies or businesses PART 13: CVAS AND IVAS – CONNECTED CREDITORS 65. Connected creditors 66. Pension trustee as connected or unconnected in a CVA Appendix A: Insolvency Act 1986, ss 249 and 435 and linked legislation Appendix B: Company Law Review Steering Group (2000) Appendix C: Similar terms in other legislation

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