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