a company’s assets and liabilities can be ascertained quickly and easily.294 Such calculations may be lengthy, fraught and highly contentious. Nor can such uncertainties be dealt with easily by Aghion, Hart and Moore’s suggestion that disputes can be set aside and dealt with once the company has come out of insolvency. The existence of a body of contested claims will constitute, apart from anything else, a cloud of uncertainty that will hang over unsecured creditors’ decisions on whether to exercise options and, as has been pointed out, such creditors may ‘invest money to keep claims alive only to discover later that their equity holding is worth far less than they had calculated because of the existence of deferred claims’.295 In sum, the equity conversion scheme has as its major probable effect the improvement of the position of banks at the expense of unsecured creditors. Nor is the deterioration of the unsecured creditors’ position unconnected with the public interest in general. Commercial life depends to a large extent on the efficient giving of unsecured credit. In so far as unsecured creditors face large risks due to uncertain processes they will tend to resort to quasi-security devices and withdrawals of credit (demanding payment on the spot). Such a tendency will hinder rather than lubricate the wheels of commerce.

Expertise

Can the new administration procedure be said to constitute a regime that allows expert judgements to be brought to bear on turnaround? A first issue on these fronts is whether the procedure conduces to the generation and use of the information that is needed to make expert and wellfounded judgements.296 From the administrator’s point of view, the need for information is urgent. He must present proposals to creditors within eight weeks of his appointment.297 He must also commence a creditors’ meeting within ten weeks of the administration’s start.298

294Campbell, ‘Equity for Debt Proposal’, p. 16; Francis, ‘Insolvency Law Reform’, p. 9.

295Campbell, ‘Equity for Debt Proposal’, p. 17.

296This section builds on V. Finch, ‘Control and Co-ordination in Corporate Rescue’ (2005) 25 Legal Studies 374.

297Para. 49(5)(b).

298Para. 51(2). (Unless the administrator thinks (a) creditors will be paid in full; (b) there is insufficient property to make a distribution to unsecured creditors; or (c) the company cannot be rescued as a going concern or a better result for the company’s creditors as a whole than would be likely on a winding up cannot be achieved: para. 52(1).)

Administrators will have considerable knowledge of the laws and processes relevant to rescue but they are unlikely to have detailed understandings of the company and its operations. On such matters, the existing management constitutes the major reservoir of relevant information and the administrator will need to use the resources that are represented by existing directors and employees.299

Co-ordination between directors and the IP is essential if information is to flow and, at this point, it is useful to consider the various factors that are likely to affect the degree to which the participants in administration will co-ordinate on the generation and use of information. A first issue is commitment to the rescue enterprise and the incentives of different actors to co-operate in the pursuit of rescue. This is likely to be affected, in turn, by perceptions of personal, corporate or other gains but also by perceptions of, and confidence concerning, other actors’ incentives. Where interests are seen as divergent, this will undermine co-operation but so will uncertainty about motives and the alignment of interests. Directors, moreover, may possess personal incentives to control the flow of information into the rescue process. Directors who want to prolong their employment at a company – for example while they seek new job opportunities – will be disinclined to precipitate action by the administrator by laying all their informational cards on the table. Instead they may seek to preserve uncertainty about the company’s position and future prospects so that the decision-maker is induced to delay taking decisions.300

It is arguable that the EA 2002 reforms will increase directorial incentives to stay on during the rescue process because the directors will recognise that IPs have rescue, and the interests of all creditors, in mind, rather than a predisposition simply to act rapidly to realise returns for the floating charge holder – as in the ‘old’ system of administrative receivership. Directors here may be conscious of the IP’s Schedule B1,

299See Phillips and Goldring, ‘Rescue and Reconstruction’, pp. 75, 78.

300See D. Baird and E. Morrison, ‘Bankruptcy Decision Making’ (2001) Journal of Law, Economics and Organization 356, 369. It may be, of course, that if directors are considering appointing an administrator, they might also consider, and discuss with an IP, whether the IP would consent to their continued management of aspects of the business under Sch. B1, para. 64. (The administrator may leave some functions in the directors’ hands but, in doing so, cannot absolve himself from his own responsibilities.) The appointment of an administrator has the effect of making the directors’ powers exercisable only with the administrator’s consent in so far as they might ‘interfere with the exercise of the administrator’s powers’ (para. 64(2)(a)) and the administrator has the power to appoint or remove directors under para. 61.

paragraph 3(1)(a) primary obligation to rescue the company as a going concern. Against such arguments, however, it might be contended that the process established by the EA may prove unpalatable to directors and that the EA’s emphasis on recognising the voices and interests of all creditors ‘may result in battle-weary key management figures who resign’.301 It is also the case that in many instances of corporate distress the incumbent directors are ousted as a result of pressure from banks or shareholders and so they are removed from the scene and do not constitute providers of ongoing information.302

It might also be contended that directors will often be highly uncertain about the motivations of the administrator in the post-EA regime. Directors may think that the main incentive for an administrator will, in reality, be to keep the banks happy rather than to pursue rescue. Such perceptions will be encouraged on reflecting that IPs are repeat players in insolvency work, that they will depend on banks for most of their current and future business, and that the banks’ powers to appoint administrators of choice303 will lead to ongoing relationships between IPs and the banks. As has been commented, moreover, administrators will rely on the provision of funds when negotiating rescue and the secured lenders, the banks, will be the usual providers of funds. These banks will be very concerned that the administrator’s proposals meet their approval: ‘there

is no legislation that can address the economic facts of life: he who pays the piper will call the tune’.304 As discussed above, the EA did not

301See M. Jervis, ‘A Tough Act To Follow’ (2003) Recovery (Summer) 13.

302In Gilson’s study of US firms only 46 per cent of incumbent directors were in place when the firms emerged from bankruptcy or settled privately with creditors two years later and in 8 per cent of cases the whole board was replaced: see S. Gilson, ‘Bankruptcy, Boards, Banks and Blockholders’ (1990) 27 Journal of Financial Economics 355. It may well be, of course, that in DIP regimes a higher turnover of directors is to be expected than in PIP regimes since the banks will be more concerned about directorial quality in regimes that leave directors in power rather than give control to a professional. On reasons for directorial departure in US firms see S. Gilson, ‘Management Turnover and Financial Distress’ (1989) 25 Journal of Financial Economics 241, 271–81 (suggesting that bank-lenders frequently institute managerial changes). For a discussion of poor performance as a driver of board change see J. Warner, R. Watts, K. Wruck et al., ‘Stock Prices and Top Management Changes’ (1988) Journal of Financial Economics 461. See also ch. 6 above.

303Holders of qualifying floating charges (QFCs) can appoint administrators out of court. If other eligible parties intend to make such appointments they must give notice to qualifying floating charge holders (QFCHs) (para. 26(2)) which allows QFCHs to appoint their own choice of administrator: see further Davies, Insolvency and the Enterprise Act 2002, pp. 164–5.

304See C. Swain, ‘A Move Towards a Stakeholder Society’ (2003) IL&P 5, 7–8.

introduce super-priority funding for any rescue initiative and, in the absence of super-priority, banks advancing rescue funds are liable to prove extremely highly motivated to negotiate the rescue plans that protect their own interests. If directors are conscious of such potential biases, they may be restrained in their commitments to assist the administrator.

A second factor that may affect co-ordination on the generation and use of information is the size and urgency of the challenge faced. This will be greater where participants in a potential rescue are large in number, divergent in character, outlook and interest and are widely dispersed. Further co-ordination difficulties arise when business challenges have to be responded to according to tight schedules.

A third, and related, issue is communication. In order to derive assurance about other actors’ intentions, each participant in a rescue operation will have to trust disclosures made about those intentions and will also have to understand these. Here there may be a set of communications difficulties that flow from the various systems within which the different actors attribute meanings to communications. Directors, banks and administrators, for instance, see the world differently from each other and are engaged in very different endeavours. Some directors, for instance, may see rescues in terms of protecting employment whereas banks may tend to see protection of corporate assets as a priority and administrators will focus strongly on their statutory objective to protect the interests of creditors as a whole. These actors possess different value frameworks and, accordingly, it is to be expected that frictions and distortions will infect communications.305 This means that insolvency regimes that involve multi-party systems of collecting information, devising strategies or implementing those strategies run serious risks that confusions, delays and uncertainties will arise during these processes – that is the downside of the inclusive processes set up by the EA 2002.306 Such communication difficulties, moreover, will affect not

305On the ‘fundamentally different views’ that banks and bondholders have regarding rescue – and the frictions that this can create within negotiations – see J. Roome, ‘The Unwelcome Guest’ (2004) Recovery (Summer) 30; and ch. 7 above. See generally N. Luhmann, Social Systems (Stanford University Press, Stanford, 1984); Luhmann, ‘Law as a Social System’ (1989) 83 Northwestern Univ. LR 136; G. Teubner, Law as an Autopoietic System (Blackwell, Oxford, 1993); G. Teubner and A. Febbrajo (eds.), State, Law and Economy as Autopoietic Systems (Giuffre, Milan, 1992).

306For a discussion of the problems of dual decision-making (where authority in insolvency is shared) see Hahn, ‘Concentrated Ownership’, pp. 152–4.

merely the propensities of different parties to commit to co-operation but also their ability to co-operate where they share a desire to cooperate – even the best-motivated choir sounds poor if its members read their song sheets in different ways.

Other factors may aggravate communication difficulties, notably increases in numbers of participants and differences of outlook and character. Here the EA creates potential gains as well as difficulties. It calls on the administrator to pursue his/her functions ‘in the interest of the company’s creditors as a whole’.307 It gives the banks considerable procedural rights,308 obliges the administrator to disclose proposals,309 and gives any creditor or member of the company a power to challenge the administrator’s conduct.310 Such provisions seek to implement the White Paper vision of a more inclusive insolvency regime.311 On the one hand, this expands inputs and access into the regime and might be said to encourage the flow of information into the rescue process from a variety of sources. On the other, it might be cautioned that such multiple inputting is likely to lead to confusions and contests as different perspectives underpin the pursuit of various interests. The overall effect may be to reduce co-operation and free flows of information. Such a situation may be exacerbated by legal provisions, such as those in paragraph 3 of Schedule B1, which create a complex hierarchy of objectives in laying down the administrator’s obligations to serve a wide variety of creditors’ interests.312

Will the dominant banks operate as ready suppliers of rescue-relevant information to administrators?313 It is arguable that the EA institutionalises the position of the floating charge holding bank as the primary source of information to the administrator about the company’s affairs and prospects. This is because all three routes into administration demand that the administrator makes a statement of the objectives intended to be pursued and formulates proposals within eight weeks of

307Para. 3(2).

308See V. Finch, ‘Re-invigorating Corporate Rescue’ [2003] JBL 527, 534–5.

309A statement of the proposals has to be sent to creditors within eight weeks of appointment of the administrator (IA 1986 Sch. B1, para. 49(5) and (6)) and an initial creditors’ meeting to consider them convened within ten weeks (para. 51(2)(b)).

310See para. 74. 311 See Insolvency Service, Insolvency – A Second Chance.

312See Frisby, ‘In Search of a Rescue Regime’.

313On the governance role of banks at times of corporate distress see Gilson, ‘Bankruptcy, Boards, Banks and Blockholders’; Franken, ‘Creditor and Debtor Oriented Corporate Bankruptcy Regimes’.

his or her appointment. The effect of these requirements will be that prospective administrators will have to be in possession of detailed information on nearly all aspects of the company and its business before they agree to act. They are likely, accordingly, to make it clear to the banks that they expect to be provided with such data on being approached and, thus advised, institutional lenders will routinely carry out independent business reviews whenever any of their debtor companies seems to be nearing financial difficulties. The banks will facilitate such reviews by making their loans conditional on the debtor company agreeing to supply information on request and to co-operate with any business review processes instituted by the bank.314 The banks are likely to possess a stock of valuable financial and operational information about many of their debtors315 but their inclination to use this for rescue purposes cannot be taken for granted. Here again the central issue is whether post-EA administration will operate as a reconstituted form of receivership or a genuinely rescue-orientated process.316 If banks use their strong positions with an eye to turning administration into receivership and the pursuit of bank rather than general creditor interests, it is to be expected that they will be little concerned to feed rescue-relevant information into the administration process.317 Administration, however, is not receivership and the interests of all creditors have to be taken into account.318 Where it is clear from the administrator’s proposals that rescue is being considered, the banks may well be concerned to inject

314See Phillips and Goldring, ‘Rescue and Reconstruction’, pp. 75, 76; Frisby, ‘In Search of a Rescue Regime’, p. 261.

315See e.g. D. Citron, ‘The Incidence of Accounting-Based Covenants in UK Public Debt Contracts: An Empirical Analysis’ (1995) 25 Accounting and Business Research 139; Day and Taylor, ‘Role of Debt Contracts’; H. DeAngelo, L. DeAngelo and K. Wruck, ‘Asset Liquidity, Debt Covenants and Managerial Discretion in Financial Distress: The Collapse of L. A. Grear’ (2002) 64 Journal of Financial Economics 3; R. Mokal and J. Armour, ‘The New UK Corporate Rescue Procedure – The Administrator’s Duty to Act Rationally’ (2004) 1 Int. Corp. Rescue 136; M. Harris and A. Raviv, ‘Capital Structure and the Informational Role of Debt’ (1990) 45 Journal of Finance 321.

316See e.g. Willcock, ‘How the Banks Won the Battle’; but cf. Lord McIntosh of Haringey, HL Debates, 21 October 2002: col. 1101. The banks may even use the process as a route to winding up: see pp. 396–7 above and generally Keay, ‘What Future for Liquidation?’; Linklater, ‘New Style Administration’; Insolvency Act 1986 Sch. B1, para. 83. Where banks are engaged in such use of the procedure they will seldom be inclined to supply rescue-relevant information.

317On whether events post-EA will be driven by ideas, interests or legally allocated rights see Finch, ‘Re-invigorating Corporate Rescue’.

318See para. 3(2).

information into the administration process – even if this is done in an effort to demonstrate the non-viability of a rescue option. The banks’ commitment to inform should not, however, be exaggerated. Banks may consider that post-EA they are not so strongly positioned as formerly to influence the IP’s actions and this may make them reserved participants in the rescue process. They may be happy to stay with entrenched and modest ways of monitoring their investments. They may, indeed, protect their investments by resorting to asset-based fixed securities rather than relying on gaining and deploying information.319 The EA, moreover, in ‘abolishing’ administrative receivership and curtailing the bank’s ability to deploy a rapid, self-interested enforcement tool may have reduced both the bank’s ability and its inclination to insist on very extensive ongoing supplies of information from the debtor company.320

As for unsecured creditors, these are parties who might be expected to possess useful information about a company in some circumstances – for example when they are established trading partners of the enterprise. The hoped-for effect of the EA reforms was to encourage informational input (and corporate monitoring) by unsecured creditors since it promises them more receptivity for their views than was the case with receivership.321 Instances where unsecured creditors will be well informed about companies, well placed to participate in rescue processes and highly committed to such participation (for example, through extent of interest) may, however, be few and far between.322 Frisby’s research, moreover, suggests that there is ‘a lack of participation in the insolvency process by unsecured creditors’ with creditors’ meetings generally being very poorly attended.323

Thus far the discussion has focused on information flows to the administrator but attention should also be paid to the information

319See pp. 403, 414–15 and ch. 3 above; D. Prentice, ‘Bargaining in the Shadow of the Enterprise Act 2002’ (2004) 5 EBOR 153; Armour, ‘Should We Redistribute in Insolven

320See Armour and Frisby, ‘Rethinking Receivership’, pp. 87–8 and on ‘active’ reasons for taking security see R. Scott, ‘A Relational Theory of Secured Financing’ (1986) 86 Colum. L Rev. 901.

321See the administrator’s duty to consider the interests of creditors as a whole: para. 3(2). On the reception of creditors’ input in receivership see ch. 8 above; E. Ferran, ‘The Duties of an Administrative Receiver to Unsecured Creditors’ (1988) 9 Co. Law. 58.

322Average returns to unsecured creditors may be so low post-administration that this may not conduce to high commitment: an R3 Survey of July 2004 revealed that unsecured creditors, on average, gained returns from ‘old’ administrations of 6.3 pence in the pound (5.4 pence from administrative receiverships).

323Insolvency Service Evaluation, 2008, p. 115.

part of the administrator.326 If, however, proposals have to be presented to creditors within eight weeks of appointment327 – even in the case of complex corporate scenarios – this may militate in favour of those strategies that are the least contentious rather than the most expert – that are sub-optimal because they are devised at speed and with an eye to minimising contest from any of the creditors with powers to take legal issue. In practice this may mean that the banks will exert strong pressure on investment decisions in an attempt to ensure that strategies carrying very low risks to bank interests are the ones that are chosen.328 These may not always be the strategies that are most conducive to rescue (or the most fair to creditors other than the bank) and they are likely to be implemented by administrators of the bank’s choosing.329 A further danger is that in the newly inclusive post-EA regime, parties other than the floating charge holding banks – such as unsecured creditors – will contest the pro-bank policies and if agreement cannot be reached within statutory timescales, they will resort to court challenge. The result may be a loss not only of expertise in choices of strategy but also of efficiency in that rescue-necessary schedules cannot be adhered to. As already indicated, the EA sets up objectives for administrators that offer numerous pegs upon which disgruntled creditors may hang lawsuits and this legal setting creates further difficulty for those administrators who would make judgements and strategies on best appraisal of their merits.

The post-EA system is not trouble free on the above fronts but it might be argued that it deserves approval for other characteristics that conduce to the expert and efficient making of high-quality rescue judgements. It might be said, for instance, that in times of corporate difficulty there is a case for taking the strategic function away from existing managers and for practitioner in possession (PIP) rather than debtor in possession (DIP) arrangements. The strength of this case turns a good deal on the model of the company director that underpins the analysis. English insolvency law has traditionally been built on the assumption that

326 The administrator, as noted, has a duty to perform his functions as quickly and efficiently as is reasonably practicable (para. 4) which creditors or members can enforce by means of an application to court under para. 74(2).

327Para. 49(5).

328See Armour and Frisby, ‘Rethinking Receivership’; G. Triantis and R. Daniels, ‘The Role of Debt in Interactive Corporate Governance’ (1995) 83 Calif. L Rev 1073.

329As noted above, qualifying floating charge holders (QFCHs) can appoint administrators out of court; other parties who intend to make such appointments have to give notice (para. 26(1)) to QFCHs which then allows QFCHs to appoint their own choice of administrator.

where a company becomes insolvent this is usually due to a failure of management and that the last people to delegate judgements to, or to leave in control, are those who are responsible for the company’s plight in the first place.330 Numerous analyses of the causes of corporate failure put poor management at the top of the list of factors inducing decline.331 This may not always be the case, however, and external pressures may sometimes place a company in acute difficulty in spite of faultless management.332 The English model of the director of the troubled company, moreover, contrasts with that implicit in the US regime, which is more inclined both to trust the skill and judgement of the existing managers and to treat corporate difficulties as problems that merit attention rather than blame.333

One response to the English view of the (often failing) corporate manager is, of course, to take steps to improve directorial skills. It could be argued that business people ought to be required to possess some sort of elementary qualification before they are allowed to act as company directors. Such qualifications would indicate that the individual has a basic understanding of company law and finance as well as the legal obligations going with directorship.334 (They might also certify that the person possessed a basic knowledge of insolvency procedures and obligations.) The IS noted that a number of business people opposed a requirement to hold qualifications on the ground that this could operate as a brake on enterprise.335 The directors consulted, however, said that they would be willing to undertake some sort of instruction provided that it was not expensive or time consuming and, overall, there was moderate support for the idea.336 Mandatory basic training for directors could,

330See discussion in ch. 6 above. Sir Kenneth Cork has written that insolvency provides an occasion for a change ‘from incompetent hands to people who not only have the wherewithal but also hopefully the competence, the imagination and the energy to save the business’: Cork on Cork, pp. 202–3. On the UK insolvency system’s development as a ‘manager-displacing’ regime see J. Armour, B. Cheffins and D. Skeel, ‘Corporate Ownership Structure and the Evolution of Bankruptcy Law: Lessons from the United Kingdom’ (2002) 55 Vand. L Rev. 1699, 1734–50.

331See ch. 4 above; R3, Twelfth Survey, Corporate Insolvency in the UK (2004).

332See ch. 4 above.

333See ch. 6 above; G. Moss, ‘Chapter 11: An English Lawyer’s Critique’ (1998) 11 Insolvency Intelligence 17, 18; J. L. Westbrook, ‘A Comparison of Bankruptcy Reorganisation in the US with Administration Procedure in the UK’ (1990) 6 IL&P 86.

334See V. Finch, ‘Company Directors: Who Cares About Skill and Care?’ (1992) 55 MLR 179 at 210.

335IS 2000, para. 58. 336 Ibid.

furthermore, be advocated on the grounds that the Companies Act 2006 spells out directors’ duties337 and creates new insolvency regimes but that such provisions will only have limited effect if steps are not taken to bring those duties and regimes to the attention of directors. Some firms and directors will voluntarily acquaint themselves with such legal matters but these more responsible firms and directors are less likely to breach legal obligations or to meet financial troubles than more maverick operators. It is the latter who are disproportionately in need of training and higher standards. As for placing a brake on enterprise, it can be responded that ill-informed and irresponsible directorial behaviour may itself hinder enterprise. A world in which traders act defensively because of fears about their solvency or financial responsibilities is not a dynamic, responsive, low-transaction-cost world. It might be conceded that directors of firms with a level of turnover below a certain figure should be exempted from the qualification requirement – this concession may be justifiable in order to encourage new business – but above that level the qualification could be mandatory. Those who object to the expense and difficulty of testing thousands of directors may be reminded, first, that each year huge numbers of would-be drivers of vehicles are tested in theory as well as in practice, and, second, that the actions of ill-informed directors may wreck businesses and lives, and, third, that a minimum competence may be a reasonable quid pro quo for the privilege of limited liability.338

Knowledge of directorial obligations and of insolvency procedures does not in itself ensure that directors will input more effectively into rescue processes or be inclined to seek help at an earlier stage of corporate decline than occurs now. What is needed, according to some commentators, is a cultural change in attitudes to insolvency. This change can be encouraged on a number of fronts. First, the notion that seeking help evidences managerial failure can be countered by public rejection of the condemnatory approach to insolvency. The speeches of Peter Mandelson when Trade Secretary exemplified such a rejection.339 Second, as indicated already, directors, where possible, can be involved

337See Companies Act 2006, Part 10 and, for example, ss. 171–7.

338See ch. 16 below.

339See the extract in Hunter, ‘Nature and Functions of a Rescue Culture’, p. 519; The Times, 14 October 1998; White Paper, Our Competitive Future: Building the Knowledge Driven Economy (Cm 4176, December 1998), section entitled ‘Fear of Failure’, paras. 212–14, which Hunter argues evidences the endorsement of this approach by Peter Mandelson’s successor, Stephen Byers. See also White Paper on Enterprise, Skill and Innovation

in rescue operations (under supervision arrangements) rather than excluded on the basis that they are inevitably culpable incompetents. Third, investors and large creditors can move to assure directors that taking early steps to secure help involves, in itself, no greater blot on the curriculum vitae than a decision to hire management consultants. Finally, such changes might be reinforced by tougher attitudes to those who indulge in wrongful and reckless trading, with greater use of the CDDA 1986 and stronger penalties imposed on errant directors.340 Such measures may go some way towards encouraging the view that failure to seek help is a more serious matter than being at the helm of a company that encounters difficulties.

Note should also be taken of the potential role of unsecured creditors in providing special expertise to rescue processes. Many unsecured creditors will know little of their business partners’ activities but some will have a detailed knowledge of the troubled company’s affairs – perhaps because of an established trading relationship in a specialised marketplace. What the collectivity of the EA processes and the duty to all creditors offers to such creditors is the chance to voice an opinion on rescue options. The unsecured creditor, accordingly, has an opportunity to attempt to persuade the administrator that there is a solution to corporate problems that allows rescue and a better than winding-up return to creditors.341 This contrasts with the prior position in receivership where the receiver had no obligation to listen to such voices and in which speedy action on behalf of the floating charge holder tended to be

accorded precedence over sustained consideration of various creditors’ views.342

So will the new administration process as set up by the EA produce more expert rescue judgements more efficiently than other systems such as DIP? Much will depend on the particular company and particular management team involved in a given corporate decline. The virtue of

(20 01) , ch. 5, paras. 5.9– 5.15: ‘ An entrepreneuria l economy needs to s upport r sible risk taking. Insolvency law must be updated so that it strikes the right balance. It

must deal proportionately with financial failure, whilst assuring creditors that it is handled efficiently and effectively’ (para. 5.10).

340See IS 2000, para. 59. See also A. Hicks, Disqualification of Directors: No Hiding Place for the Unfit? ACCA Research Report No. 59 (London, 1998). See ch. 16 below.

341As per para. 3(1)(a) or (b). The EA does, however, allow creditors’ meetings to be bypassed in certain circumstances: see Sch. B1, para. 52. On the ‘capture’ of creditors’ meetings generally see S. Wheeler, ‘Empty Rhetoric and Empty Promises: The Creditors’ Meeting’ (1994) 21 Journal of Law and Society 350.

342See Ferran, ‘Duties of an Administrative Receiver’.