The Vice-Chancellor :
Introduction
- On 7th October 2001 a railway administration order, as defined in s.59 Railways Act 1993, was made in respect of Railtrack plc ("Railtrack"). The defendants are the special railway administrators appointed thereunder. So long as the railway administration order is in force s.11(3) Insolvency Act 1986, as modified by Railways Act 1993, precludes the commencement or continuation of certain proceedings without the consent of the special railway administrators or the leave of the Court.
- The claimant is the Rail Regulator. As such he has the functions and powers and is subject to the duties prescribed by Railways Act 1993. By s.17 he is entitled, subject to following the prescribed procedure, to direct Railtrack to enter into an access contract granting permission to the other party to use the track for the purpose of operating trains. If such a direction is made it is enforceable by injunction pursuant to s.144 Railways Act 1993. It is common ground that proceedings against Railtrack under s.144 come within s.11(3) as modified. The question for my determination is whether the earlier proceedings under s.17 do too.
- The answer depends on the true construction of s.11(3) as modified, in particular the words “no other proceedings...against the company or its property” in paragraph (d). The subsection provides (the modifications required by Railways Act 1993 being shown in bold)
(3) During the period for which an administration order is in force-
(a) no resolution may be passed or order made for the winding up of the company;
(b) no administrative receiver of the company may be appointed;
(c) no other steps may be taken to enforce any security over the company's property, or to repossess goods in the company's possession under any hire-purchase agreement, except with the consent of the administrator or the leave of the court and subject (where the court gives leave) to such terms as the court may impose; and
(d) no other proceedings (reference to which shall include a reference to any proceedings under or for the purposes of sections 55 or 57A of the Railways Act 1993) and no execution or other legal process may be commenced or continued, and no distress may be levied, against the company or its property except with the consent of the administrator or the leave of the court and subject (where the court gives leave) to such terms as aforesaid.
- To put the subsection into its proper context and to explain the arguments it is necessary to describe the Railways Act 1993 in a good deal more detail.
The Railways Act 1993
- The Act was the means whereby the nationalised railway network was privatised. It was substantially amended by Transport Act 2000. Except where otherwise stated I shall refer to the amended version. Part II dealt with the reorganisation of the railways. In accordance with its provisions the railtrack throughout England, Wales and Scotland became vested in Railtrack. The railtrack, trains, stations and light maintenance depots are described as “railway assets”. The operator of any such asset requires either a licence or an exemption for which ss.6 to 16 provide. Obviously the operator of a train will also need the permission of the owners to its use of the track, stations and light maintenance depots. Those items are “railway facilities”, s.83(1). Ss.17 to 22 deal with access contracts whereby the applicant obtains the permission of the owner to his use of that railway facility.
- S.17(1) empowers the Rail Regulator, on the application of any person, to give directions to a facility owner, such as Railtrack, requiring him to enter into an access contract granting the applicant permission, but not a lease, to use the track, station or maintenance depot as the case may be for the purpose of operating trains. The procedure by which such a direction is sought and obtained is laid down in Schedule 4.
- Schedule 4 specifies what details the application must contain (para.2). On receipt of the application the Rail Regulator is required to send a copy of it to the facility owner and invite his representations and, subsequently, to send a copy of those representations to the applicant and ask for his response (para.3). By para.4 the Rail Regulator is required to do the same with regard to interested persons, as ascertained from the facility owner, being those third parties whose consent would be required to the conclusion of an access contract in the form sought. In practice the Rail Regulator often holds an oral hearing as well. Para.5 requires the decision to be sent to the applicant, facility owner and interested party and to contain any necessary directions. Such directions may include an award of compensation to an interested party. The direction is binding on the person to whom it is given, para.6(1), though the facility owner may be absolved from compliance if the applicant fails to enter into the access contract, para.5(4).
- Ss.23 to 54 deal with franchising of passenger services, Passenger Transport Authorities and Executives, closures and ancillary matters. None of them is directly material to the question I have to decide, but it is to be noted that provision is made in those sections too for directions to be given for the enforcement of duties by the Secretary of State, see for example ss.24(6)and 34(17).
- Ss.55 to 58 deal with enforcement by the Rail Regulator or the Strategic Rail Authority of conditions or requirements contained in a licence, franchise or closure. Ss.55 and 57A are directly relevant as they are specifically referred to in s.11(3)(d) Insolvency Act 1986 as modified by Railways Act 1993 and quoted in paragraph 3 above.
- S.55 authorises the Rail Regulator to make orders to secure compliance with a condition or requirement contained in a licence, franchise or closure; it does not apply to an access contract made pursuant to s.17. Such orders may be provisional or final. S.56 sets out the procedure to be followed in the case of a final order or the confirmation of a provisional order. Due notice must be given to the licensee, an opportunity to make representations must be afforded to him and the Rail Regulator must consider those representations. Any order made must be served and publicised as required by that section. A person aggrieved by any order, final or provisional may apply to the Court under s.57 within 42 days of service of the order on him. S.57 enables the Court to quash the order if the making or confirmation of it was not within the powers conferred by s.55 or the applicant had been substantially prejudiced by a failure to observe the procedural requirements of s.56. Subject to that jurisdiction the validity of a final or provisional order cannot be questioned in any legal proceedings whatever. The order creates a duty owed to anyone who might be affected by its contravention and is, ultimately, enforceable by injunction, s.57(4) and (7).
- Ss.57A to s.57F contain substantially similar provisions relating to penalties for contravening a condition or requirement of a licence. In such a case the jurisdiction of the court to quash the penalty is wider. In addition to the two grounds comparable to those provided for by s.57 the Court may also intervene on limited grounds of unreasonableness, s.57F(1)(c). A penalty is recoverable by the Strategic Rail Authority with interest under s.17 Judgments Act 1838.
- S.144 also deals with enforcement. So far as relevant it provides
“(1) It shall be the duty of any person to whom a direction is given under this Act to comply with and give effect to that direction…
(2) Without prejudice to any right which any person may have to bring civil proceedings in respect of any contravention or apprehended contravention of any direction given under this Act, compliance with any such direction shall be enforceable by civil proceedings, by the person by whom the direction was given, for an injunction or interdict or for any other appropriate relief.
(3) Any power conferred by this Act to give a direction shall, unless the context otherwise requires, include power to vary or revoke the direction.
(4)....”
It is plain that s.144 applies to a direction given under s.17. But there are many other provisions in the Act under which directions may be given which are also subsequently enforceable under s.144. I have already referred to ss. 24(6), and 34(17). Other provisions for directions are to be found in ss. 72(4), and 73(4).
- Ss.59 to 65 deal with railway administration orders and make provisions to deal with an insolvent railway company. But before referring to them it is convenient to consider the position of the Rail Regulator. The office was created by s.1. The general duties of the Rail Regulator are set out in s.4. He is required by subsection (1) to exercise his functions under Part I in the manner which he considers best calculated
"(za) to facilitate the furtherance by the Authority of any strategies which it has formulated with respect to its purposes;
(a) to protect the interests of users of railway services;
(b) to promote the use of the railway network in Great Britain for the carriage of passengers and goods, and the development of that railway network, to the greatest extent that he considers economically practicable;
(ba) to contribute to the development of an integrated system of transport of passengers and goods;
(bb) to contribute to the achievement of sustainable development;
(c) to promote efficiency and economy on the part of persons providing railway services;
(d) to promote competition in the provision of railway services for the benefit of users of railway services;
(e) to promote measures designed to facilitate the making by passengers of journeys which involve use of the services of more than one passenger service operator;
(f) to impose on the operators of railway services the minimum restrictions which are consistent with the performance of his functions under this Part;
(g) to enable persons providing railway services to plan the future of their business with a reasonable degree of assurance.”
- I should also refer to s.4(5)(b) which requires the Rail Regulator in the exercise of his functions
“to act in a manner which he considers will not render it unduly difficult for persons who are holders of network licences to finance any activities or proposed activities of theirs in relation to which the Regulator has functions under or by virtue of this part...”
- It is not disputed that these provisions, in particular s.17, apply as well after as before a railway administration order is made. The question is whether or not the railway administration order imposes additional requirements so that the consent of the special railway administrators or the leave of the Court is required not only to the enforcement of a direction made under s.17 but also to the commencement and continuation of the process by which such a direction is obtained.
- S.59 provides for what are called “railway administration orders” to be made in respect of protected railway companies, as defined. Subsection (2) provides that the purposes of a railway administration order are
“(a) the transfer to another company, or (as respects different parts of its undertaking) to two or more different companies, as a going concern, of so much of the company’s undertaking as it is necessary to transfer in order to ensure that the relevant activities may be properly carried on; and
(b) the carrying on of those relevant activities pending the making of the transfer.”
Relevant activities are defined by s.59(6)(b) as the carriage of passengers or the management of a network, station or maintenance depot. S.59(3) applies Schedule 6, which contains modifications to Part II Insolvency Act 1986, to a railway administration order. Provision for modified forms of company administration have also been made in other contexts, for example in the Water Industry Act 1991.
- By para.1 of Schedule 6 ss.11 to 23 and 27 of Insolvency Act 1986 apply with the modifications specified in other paragraphs in the Schedule. There are many modifications. By para.2(b) in s.11 of the 1986 Act
“the reference in subsection (3)(d) to proceedings shall include a reference to any proceedings under or for the purposes of section 55 or section 57A of this Act.”
I have reproduced s.11(3)(d) as modified in para 3 above. Para 6 provides that the duty of the administrator as provided by s.17 of the 1986 Act shall be
“to manage the affairs, business and property of the company in accordance with proposals, as for the time being revised under s.23...”
Para 9 amends s.23 so as to provide for the proposals to be submitted to amongst others the Rail Regulator. S.27 of the 1986 Act is amended so as to entitle the Secretary of State to apply to the court if he considers that the special railway administrators are exercising their powers or proposing to do so in a manner which will not best ensure the achievement of the purposes of the railway administration order.
- S.60 provides for railway administration orders to be made on the petition of the Secretary of State or, with his consent, of the Strategic Rail Authority if, amongst other grounds, the company is or is likely to be unable to pay its debts. S.61 provides that petitions to wind up a protected railway company are to be served on the Secretary of State or the Strategic Rail Authority to enable them to consider whether to apply for a railway administration order instead. S.62 precludes a voluntary winding up of a protected railway company otherwise than with the leave of the court, due notice having been given to the Secretary of State or Strategic Rail Authority for the like purpose. Ss.63 and 64 authorise the Secretary of State to provide financial assistance to a company in railway administration by way of loan or guarantee.
The Facts
- On 28th February 1994 Railtrack was incorporated as a wholly owned subsidiary of Railtrack Group plc. As I have already recorded the railtrack network throughout England, Wales and Scotland was and is vested in Railtrack. Accordingly any train operator would need to have access contracts with Railtrack. Many have been granted without opposition from Railtrack or the special railway administrators.
- As I have already recorded a railway administration order in respect of Railtrack was made on the petition of the Secretary of State under s.60 on 7th October 2001 on the ground that Railtrack was or was likely to be unable to pay its debts. An order was made by Ferris J on 21st December 2001 extending the time within which the special railway administrators were required to produce the statement of their proposals for achieving the purposes of the order required by s.23 Insolvency Act as modified by Railways Act 1993. Such proposals were produced on 2nd April 2002. They record the position in the railway administration and the steps taken to achieve the statutory purpose set out in s.59(2).
- EWS is a substantial freight train operator. On 7th February 2002 EWS applied to the Rail Regulator pursuant to s.17 for an access contract with Railtrack to replace that due to expire on 31st May 2002. The application was duly served on Railtrack and representations were sent by the special railway administrators to the Rail Regulator in March 2002. The special railway administrators objected to a number of the terms in the proposed access contract on the grounds that such terms would inhibit the achievement of the purpose of the railway administration order. In that connection, and for the first time, they contended that s.11(3) Insolvency Act 1986 as modified applied to the application made by EWS pursuant to s.17. On 26th March 2002 EWS instituted proceedings seeking a declaration that s.11(3) as modified was not so applicable.
- By 25th April 2002 the special railway administrators and EWS had composed their differences and so informed the Rail Regulator. The Rail Regulator was concerned to have the question of law as to the applicability of s.11(3) as modified to the s.17 procedure determined and himself commenced the proceedings now before me on 26th April 2002. The special railway administrators contended that such proceedings were hypothetical and not such as the court should entertain. I rejected that submission in a judgment I gave on 8th May. The special railway administrators disclaimed any intention to appeal from that decision and I proceeded to hear the claim of the Rail Regulator on its merits. The relief sought by the Rail Regulator is a declaration that
“s.11(3) of the Insolvency Act 1986, as it applies to companies in railway administration by virtue of s.59(3) and Schedule 6 Railways Act 1993, does not cover determinations by the Rail Regulator of applications made under s.17 Railways Act 1993.”
The case for the Rail Regulator
- The Rail Regulator emphasises that s.4 requires him to discharge his functions under s.17, amongst other provisions in Part I Railways Act 1993, in accordance with the various public interests s.4 identifies. He points out that he is amenable to judicial review. He submits that the process provided for by s.17 is essentially regulatory and quite unlike an arbitration or other resolution of a private dispute.
- The Rail Regulator relies on the decisions of the Court of Appeal in Re Paramount Airways [1990] BCC 130 and Re Rhondda Waste Disposal Ltd [2001] Ch 57 and of the Court of Session in Air Ecosse v Civil Aviation Authority [1987] 3 BCC 492 as generally supportive of his contentions that the phrase “other proceedings” in s.11(3)(d) as modified does not comprehend the s.17 procedure.
- The Rail Regulator also relies on the terms of Railways Act 1993 Schedule 6 para 2(b) whereby express references to ss.55 and 57A were introduced into s.11(3)(d) in its application to railway administrations. He submits that those words are apt to apply s.11(3) to the ss.55 and 57A procedures but to no others. He contends that such express inclusion presupposes that other regulatory procedures are not included. He accepts that s.11(3) does apply to any application under s.144 to enforce a direction made after the s.17 procedure has been completed but contends that that is the consequence of such procedure being in court.
The case for the Special Railway Administrators
- The special railway administrators challenge all these contentions. They point out that the fact that the Rail Regulator has to act in the public interest and in a regulatory capacity is no ground for excluding the s.17 procedure from the ambit of s.11(3) when criminal proceedings are comprehended (Re Rhondda Waste Disposal Ltd) and two regulatory procedures, those provided by ss.55 and 57A, are expressly included.
- The special railway administrators submit that the cases relied on by the Rail Regulator either do not support his case, are inapplicable to the circumstances of this case or, to be pursued in higher courts if necessary, are wrong. They contend that the modification required by Schedule 6 para 2(b) by its use of the words “shall include” supports their case by recognising that the phrase “other proceedings...against the company or its property” is in its context wide enough to comprehend regulatory procedures other than those expressly mentioned.
Conclusion
- I propose to start with the decisions to which both parties referred for such assistance as they may provide. I accept, of course, that the decisions of the Court of Appeal are binding on me and that of the Court of Session is at least highly persuasive. However this case does not concern s.11(3) Insolvency Act 1986 but to some provisions of it incorporated by reference into the Railways Act 1993 and there subject to substantial modification. Both the context and the words used are different. It is not to be assumed that the phrase “other proceedings” bears the same meaning in the Railways Act 1993 as it does in the Insolvency Act 1986.
- In Re Paramount Airways Ltd [1990] BCC 130 an administration order had been made in respect of a charter airline. Thereafter aircraft of which it was the lessee and operator were detained under s.88 Civil Aviation Act 1982 at Bristol and Birmingham airports for failure to pay airport dues. The issues were whether leave to detain was required under s.11(3) Insolvency Act 1986 and if so whether it should be granted. Harman J concluded that leave was required because the exercise of the rights of detention amounted either to “other proceedings” or levying a distress within paragraph (d) or a step taken to enforce a security within paragraph (c). The Court of Appeal concluded that the exercise of a right of detention was within paragraph (c) but was not a distress or “other proceedings” within paragraph (d).
- After setting out the facts, the terms of s.88 Civil Aviation Act 1982, the features of an administration and the issues Sir Nicolas Browne-Wilkinson V-C considered the proper approach to the construction of Insolvency Act 1986. At p.147 he said
“The judge was very much influenced in his construction by the manifest statutory purpose of Pt. II of the Act. I agree with this approach. The provisions of Pt. II themselves, coupled with the mischief identified in the Cork Report, show that the statutory purpose is to install an administrator, as an officer of the court, to carry on the business of the company as a going concern with a view to achieving one or other of the statutory objectives mentioned in sec. 8(3). It is of the essence of administration under Pt. II of the Act that the business will continue to be carried on by the administrator. Such continuation of the business by the administrator requires that there should be available to him the right to use the property of the company, free from interference by creditors and others during the, usually short, period during which such administration continues. Hence the restrictions on the rights of creditors and others introduced by sec. 10 and 11 of the Act. In my judgment in construing Pt II of the Act it is legitimate and necessary to bear in mind the statutory objective with a view to ensuring, if the words permit, that the administrator has the powers necessary to carry out the statutory objectives, including the power to use the company's property.”
In my view that principle is equally applicable to a consideration of the true construction of the provisions of the Railways Act setting up the system for railway administration orders.
- At p.153 the Vice-Chancellor considered the meaning of the phrase “other proceedings” in s.11(3)(d) Insolvency Act 1986. He said
“In my judgment the natural meaning of the words "no other proceedings ..... may be commenced or continued" is that the proceedings in question are either legal proceedings or quasi-legal proceedings such as arbitration. It is true that the word "proceedings" can, in certain contexts, refer to actions other than legal proceedings, e.g. proceedings of a meeting....
Further, the reference to the "commencement" and "continuation" of proceedings indicates that what Parliament had in mind was legal proceedings. The use of the word "proceedings" in the plural together with the words "commence" and "continue" are far more appropriate to legal proceedings (which are normally so described) than to the doing of some act of a more general nature. Again, it is clear that the draftsman when he wished to refer to some activity other than "proceedings" was well aware of the word "steps" which he used in sec. 11(3)(c).
The judge (at p. 139D) took the view that the words "other proceedings" covered
"every sort of step against the company, its contracts or its property, which may be taken, and the intention of Parliament by sec. 11 is to prevent all such, without the leave of the court or the consent of the administrators."
In my judgment, however anxious one may be not to thwart the statutory purpose of an administration, the judge's formulation must be too wide. If the word "proceedings" has this wide meaning, all the other detailed prohibitions in sec. 11(3) would be unnecessary. Moreover such a construction would introduce great uncertainty as to what constituted commencement or continuation of proceedings....In my judgment, the judge's view would produce an undesirable uncertainty which, in view of my construction of sec. 11(3)(c), it is unnecessary to introduce into the Act.”
The question is whether those considerations are equally applicable in the different context of Railways Act 1993.
- In Re Rhondda Waste Disposal Ltd [2001] Ch 57 the Court of Appeal was concerned with the question whether the prosecution of a company in administration for failure to comply with the conditions attached to its waste disposal licence required the consent of the administrators or the Court under s.11(3) Insolvency Act 1986. The judge concluded that such consent was required because a prosecution was “other proceedings” and refused to give it. The prosecutor appealed. The Court of Appeal agreed with the judge.
- Scott Baker J, with whom Henry and Robert Walker LJJ agreed, concluded that the phrase “other proceedings” did include a criminal prosecution. In paragraph 27 he said
“Having concluded that ejusdem generis has no place in the construction of these sections I turn to the natural meaning of the words. It seems to me that they have a plain and clear meaning. The words: "No other proceedings and no execution or other legal process may be commenced or continued ..... against the company or its property" cover on their face all judicial and quasi judicial proceedings. There is no qualification to "other proceedings". The sections do not say "no other civil proceedings"; nor is there any reference to excluding any particular category of proceedings, eg criminal proceedings. The words used are entirely apt, submits Mr. Davies for the company, to include all judicial proceedings. There are other sections in the 1986 Act that specify offences by a company, eg section 30. It is to be inferred that the draftsman intended that proceedings for such offences should fall under the umbrella of "other proceedings" in sections 10 and 11, otherwise they would have been expressly excluded.”
- In the light of those principles it has been decided that proceedings before an Industrial Tribunal, Carr v British International Helicopters Ltd [1994] 2 BCLC 474 and the adjudication procedure provided for by s.108 Housing Grants, Construction and Regeneration Act 1996, A.Straume (UK) Ltd v Bradlor Developments Ltd [2000] BCC 333, require consent under s.11(3) to their commencement or continuation against a company in administration.
- Considerable reliance was placed by the Rail Regulator on the decision of the Court of Session in Air Ecosse v Civil Aviation Authority [1987] 3 BCC 492. In that case Air Ecosse had a licence from the Civil Aviation Authority for a route in Scotland. One of its competitors applied to the Civil Aviation Authority for its revocation and the grant of a new licence to itself. An administration order was then made against Air Ecosse. As no consent to the continuation of the revocation proceedings had been obtained Air Ecosse sought an injunction to prevent the Civil Aviation Authority from considering the matter. An injunction was refused by both the Lord Ordinary and, on appeal, by the Court of Session.
- The Court of Session based its decision on two grounds. The first was that to fall within the phrase “other proceedings” they must be brought by a creditor. It is common ground that that is not the law of England as demonstrated by the decision of the Court of Appeal in Re Rhondda Waste Disposal Ltd [2001] Ch 57. The second ground was that it could not have been the intention of Parliament that the regulatory powers of the Civil Aviation Authority should be limited by an unconnected Insolvency Act. Thus, at p.496, Lord McDonald said
“I also take the view that it is unlikely that Parliament would intend to limit the powers which it has conferred upon the CAA by the terms of an insolvency statute. It must be assumed that the CAA will exercise these powers strictly in accordance with their statutory remit and in a judicial fashion. I find it difficult to envisage what benefit will accrue to members of the public who make use of air transport if leave of the Court has to be obtained before the CAA can consider an application for the revocation of a licence held by an operator company which is subject to an administration order. It may be of importance to the survival of the company or the advantageous disposal of its undertaking that its licence should not be revoked. It may also be, as suggested by the reclaimers, that some procedure can be devised within the administration process whereby leave of the court can quickly be granted or refused. These are not, however, matters which fall within the general objectives of the CAA under sec. 4 of the 1982 Act to which their activities must be directed.”
Similarly Lord Robertson, at p.500, considered that
“....in view of the public duty aspect of the CAA's functions in relation to the licences I do not think the CAA's hearings in relation to the revocation of the licences and and granting of licences to BA - albeit relating to the same routes - can be said properly to be "proceedings.... against the company or its property" within the meaning of sec. 11 (3)(d). They are hearings in relation to the discharging of the CAA's public duty as laid on them in the 1982 Act. The CAA's duty in relation to these matters is as set out in sec. 4, 65 and 66 of the 1982 Act: it may be that the petitioners' ability to carry out their duties under the licences is in question at such hearings, but it is not the only question thereat, and I am not convinced that the hearings can be said to be "proceedings ..... against the company or its property" within the meaning of sec. 11(3)(d). They are not in the strict legal sense proceedings against the company at all.”
Lord Ross expressed the same opinion at p. 503 where he said
“There is a further reason for preferring the construction for which the respondents contended. If the petitioners' arguments were well-founded, and the hearing before the first respondents was to be covered by sec 11(3)(d) the result would be that the first respondents would be unable to consider the revocation of the petitioners' air transport licence unless the administrator consented to their doing so or the court granted leave for the first respondents to entertain the application. In my opinion, this would constitute a serious infringement of the first respondents' powers conferred upon them by Parliament, and if it were the intention of Parliament so to restrict the first respondents' powers I would have expected that to be the subject of express provision. Moreover, if the contention for the petitioners were well-founded, the result would be that where licences of various kinds were held by a company and an administration order relating to that company had been made, a licensing authority would be disabled from dealing with or revoking the licence without the consent of the administrator or the leave of the court. That would be a surprising result, and I am not persuaded that it is what Parliament intended. I cannot detect in any of the provisions of the Act of 1986 relating to administration orders any indication that licences held by a company in relation to which an administration order has been made should be immune from control by the licensing authority.”
- The views expressed by the members of the Court of Session were in the context that there was no mention in the relevant part of the Civil Aviation Act 1982 to the process of administration under the Insolvency Act 1986. Nor was there any reference in s.11(3) Insolvency Act 1986 to regulatory proceedings under the Civil Aviation Act. Whilst the views of the members of the Court of Session are entitled to the greatest respect the context of the Railways Act 1993 ss.59 to 65 and Schedule 6, in particular para 2(b), are so different that I do not think the decision or reasoning of the Court of Session will bear the weight the Rail Regulator seeks to put upon them.
- In the light of all these considerations the proper starting point must be the purpose of the railway administration procedure for which the Railways Act 1993 provides. The procedure is plainly the legislative preference for dealing with an insolvent protected railway company, hence the provisions of ss. 61 and 62 seeking to inhibit both a compulsory and a voluntary winding up until the Secretary of State has had an opportunity to place the company in question into railway administration. Likewise financial assistance from the public purse is only available under ss. 63 and 64 where the company is subject to a railway administration order.
- The purpose of such an administration is the transfer of the undertaking as a going concern to some other company so as to ensure that the relevant activities, namely the carriage of passengers or the management of a network, station or maintenance depot may be properly carried on. The principal agents for achieving that purpose are the special railway administrators as officers of the court. As Nicholls LJ observed in Re Atlantic Computers Systems plc [1992] Ch 505, 529
“An administrator is an officer of the court. He can be expected to make his decision speedily, so far as he can do so. He may be able at least to make an interim decision, such as agreeing to pay the current rents for the time being. The administrator should also make his decision responsibly. His power to give or withhold consent was not intended to be used as a bargaining counter in a negotiation in which the administrator has regard only to the interests of the unsecured creditors.”
- Both the Secretary of State and the Rail Regulator are in a position to contribute to the special railway administrators’ proposals for achieving the statutory purpose because copies must be sent to them pursuant to s.23 as modified. Only the Secretary of State is entitled to apply to the Court for an order under s.27 Insolvency Act 1986 as modified if he considers that the conduct or proposals of the special railway administrators will not best achieve that purpose.
- The conclusion I draw from these considerations is that it would be entirely consistent with the nature and purpose of a railway administration and with the functions and responsibilities of the special railway administrators if the consent of the special railway administrators or of the leave of the Court is required for procedures prescribed by Railways Act which may affect the company or its property. The Railways Act provides for procedures in addition to those specifically mentioned in the modification of s.11(3)(d). Whether or not such procedures can be described as regulatory they are certainly similar to legal or quasi-legal or –judicial proceedings.
- S.17 prescribes the process by which a person wishing to operate trains obtains the necessary permission to use the facilities needed for that purpose be they railtrack, stations or maintenance depots. The procedure is one which is susceptible both of commencement and continuation; it has some similarities with ordinary civil proceedings or arbitrations, though there are also differences. It may result in a direction which has an important impact on the management of the affairs, business and property of the company in railways administration which, by s.17 Insolvency Act as modified, is entrusted to the special railway administrators. Indeed such a direction could frustrate the achievement of the statutory purpose. Accordingly, even though the Rail Regulator is subject to the duties imposed by s.4 and to judicial review and notwithstanding that some element of the procedure may be properly described as regulatory the nature of the s.17 procedure is entirely consistent with the need to obtain the consent of the special railway administrators or the leave of the Court for its commencement or continuation.
- It was submitted on behalf of the Rail Regulator that it was sufficient protection of the functions and duties of the special railway administrators if the process of enforcement prescribed by s.144 could, as he accepted, only be instituted with the consent of the special railway administrators or the court. In my view the protection for the statutory purpose afforded by the application of s.11(3) as modified only to proceedings under s.144 would be insufficient. First, the s.17 procedure may give rise to substantial expenditure in time and money which is best avoided. Second, its conclusion gives rise to an obligation. It is true that the Rail Regulator may subsequently revoke the direction under s.144(3) but a successful applicant may already have invoked the obligation imposed on the facility owner by Schedule 4 para 6(1) in other contexts than enforcement proceedings under s.144. There is nothing unusual in a requirement for consent under s.11(3) at more than one stage. For example, it commonly happens that consent is sought and given to commencing negligence proceedings so that the claimant may obtain the benefit of the company’s insurance cover but then refused if it is sought to enforce the resulting judgment against the company’s assets.
- Given that it would be consistent with both the purpose of a railway administration and the nature of the s.17 procedure that consent should be required under s.11(3) as modified it is necessary also to consider the words used. Schedule 6 para 2(b) requires the words “other proceedings” to “include a reference to any proceedings under or for the purposes of” ss. 55 and 57A. Those sections provide for orders to be made at the conclusion of out of court procedures which may well lead on to court proceedings properly so called. It is clear that the procedure down to the making of the order is not dissimilar to that prescribed by s.17. The word “include” may recognise that others of the same type are already included, as the special railway administrators submit, or it may presuppose that they are not, as the Rail Regulator maintains.
- I prefer the first alternative. If the procedure prescribed by ss.55 and 57A leading up to the making of the orders of the Rail Regulator are to be treated as proceedings for the purposes of s.11(3) as modified I can see no rational basis for concluding that Parliament intended the s.17 procedure to be treated differently. Both prescribe a procedure which ends in a legal obligation. Both are subsequently enforceable by court proceedings which require separate consent under s.11(3). If “other proceedings....against the company or its property” in s.11(3)(d) as modified does not include all proceedings analogous to those under or for the purposes of ss.55 and 57A then what is it which brings in the enforcement procedure provided for in s.144? The answer must lie in the generality of the words “other proceedings”, but if the generality brings in s.144 I see no reason why, in the context of the Railways Act as a whole, it should exclude s.17.
- In conclusion I consider that the nature of both a railway administration and a s.17 application and the words used all indicate that Parliament intended the words “other proceedings.....against the company or its property” in s.11(3)(d) as modified to comprehend the s.17 procedure. It follows that I reject the claim of the Rail Regulator. Subject to any further argument on the form of my order I consider that I should make a declaration in the form sought but omitting the word “not”.
