The Medway Ports Authority Scheme 1991 Confirmation Order 1992

Made: 6th February 1992

Coming into force: 29th February 1992

Whereas the Secretary of State for Transport is for the purposes of Part I of the Ports Act 1991[^f00001] the appropriate Minister in relation to the Medway Ports Authority; And whereas the Secretary of State has in pursuance of subsection (6) of section 9 of that Act considered the representations duly made to him before the end of the period allowed pursuant to subsection (4)(c) of that section and not withdrawn: Now, therefore, the Secretary of State, after consulting the said Authority in pursuance of paragraph (a) of the said subsection (6), in exercise of the powers conferred on him by subsection (7) of the said section 9 and of all other powers enabling him in that behalf, hereby makes the following Order:—

And whereas the Secretary of State has in pursuance of subsection (6) of section 9 of that Act considered the representations duly made to him before the end of the period allowed pursuant to subsection (4)(c) of that section and not withdrawn:

Now, therefore, the Secretary of State, after consulting the said Authority in pursuance of paragraph (a) of the said subsection (6), in exercise of the powers conferred on him by subsection (7) of the said section 9 and of all other powers enabling him in that behalf, hereby makes the following Order:—

Citation and commencement

1

This Order may be cited as the Medway Ports Authority Scheme 1991 Confirmation Order 1992 and shall come into force on 29th February 1992.

Confirmation of Scheme

2

• (1) The Medway Ports Authority Scheme 1991 is hereby confirmed with modifications.

• (2) The text of the said Scheme as so confirmed is set out in the Schedule hereto.

SCHEDULE — THE MEDWAY PORTS AUTHORITY SCHEME 1991

The Medway Ports Authority, being a relevant port authority within the meaning of section 1(3) of the Ports Act 1991, make this Scheme under Part I of that Act:—

Citation and interpretation

1

• (1) This Scheme may be cited as the Medway Ports Authority Scheme 1991.

• (2) In this Scheme, unless the context otherwise requires—

• “the 1991 Act” means the Ports Act 1991;

• “the Authority” means the Medway Ports Authority;

• “the dissolution date” means the date on which the Authority are dissolved by an order made under section 7 of the 1991 Act;

• “local statutory provision” means— a provision contained in, or in a document made or issued under, any local Act (including an Act confirming a provisional order); or a provision of any other instrument which is in the nature of a local enactment;

• “the Successor Company” means the company specified in paragraph 3 below;

• “the transfer date” means the date upon which this Scheme takes effect.

Purpose of Scheme

2

This Scheme is made with a view to securing the transfer to the Successor Company under section 2 of the 1991 Act of—

• (a) all property, rights and liabilities of the Authority other than—

• (i) the securities of the Successor Company held by the Authority,

• (ii) any rights or liabilities of the Authority in respect of such securities held by a nominee of the Authority, and

• (iii) any liability of the Authority incurred by virtue of section 19 of the 1991 Act in connection with any proposal for maximising participation by employees of the Successor Company in ownership of its equity share capital, and

• (b) all functions conferred or imposed on the Authority by any provision contained in the Medway Ports Authority Act 1973[^f00002] or any other local statutory provision.

Specification of Successor Company

3

Medway Ports Limited, a company formed in pursuance of section 1 of the 1991 Act and registered under the Companies Act 1985[^f00003] with the number 2639118 which is a wholly-owned subsidiary of the Authority, is hereby specified to be the Authority’s successor company for the purposes of Part I of the 1991 Act.

Accounts of Authority up to 31st December 1991

4

• (1) Where the financial year dealt with in the last statement of accounts prepared by the Authority under section 42 of the Harbours Act 1964[^f00004] before the transfer date does not end on 31st December 1991, it shall be the duty of the Successor Company to prepare a statement of accounts giving a true and fair view of the state of affairs and the income and expenditure of the Authority in respect of the financial year ending on 31st December 1991.

• (2) The statement of accounts prepared under sub-paragraph (1) above shall be audited by auditors appointed by the Authority (or, if no such appointment has been made before the dissolution date, by the Successor Company), and a person shall not be qualified to be so appointed unless that person is a member of, or is a Scottish firm in which all the partners are members of, one or more of the following bodies of accountants—

• (a) The Institute of Chartered Accountants in England and Wales;

• (b) The Institute of Chartered Accountants of Scotland;

• (c) The Chartered Association of Certified Accountants; and

• (d) The Institute of Chartered Accountants in Ireland.

Accounts of Authority from 1st January 1992 to transfer date

5

• (1) Where the transfer date falls after 31st December 1991, the statutory accounts prepared by the directors of the Successor Company in respect of a period which consists of or includes the whole or any part of the residual accounting period of the Authority shall deal with the affairs of the Authority during so much of the residual accounting periodas falls within that period as well as, and as one with, the affairs of the Successor Company.

• (2) In this paragraph—

• (a) “statutory accounts” means, in relation to the Successor Company,—

• (i) any accounts prepared by that company for the purposes of any provision of the Companies Act 1985 including group accounts, and

• (ii) any statement of accounts prepared by that company under section 42 of the Harbours Act 1964;

• (b) references to the residual accounting period of the Authority are references to the period beginning with 1st January 1992 and ending with the date before the transfer date.

Accounts of Authority after transfer date

6

• (1) It shall be the duty of the Authority—

• (a) to keep proper accounts in respect of the period beginning with the transfer date and ending immediately before the dissolution date and proper records in relation to the accounts; and

• (b) to prepare in respect of each new accounting period a statement of accounts giving a true and fair view of the state of affairs and the income and expenditure of the Authority.

• (2) A statement of accounts of the Authority prepared in pursuance of sub-paragraph (1)(b) above shall be audited by auditors appointed by the Authority, and a person shall not be qualified to be so appointed unless that person is a member of, or is a Scottish firm in which all the partners are members of, one or more of the following bodies of accountants—

• (a) The Institute of Chartered Accountants in England and Wales;

• (b) The Institute of Chartered Accountants of Scotland;

• (c) The Chartered Association of Certified Accountants; and

• (d) The Institute of Chartered Accountants in Ireland.

• (3) The Authority shall send to the Secretary of State a copy of the statement of accounts prepared in pursuance of sub-paragraph (1)(b) above together with a copy of the auditor’s report on it.

• (4) In this paragraph “new accounting period” means—

• (a) a period of twelve months beginning with the transfer date or with an anniversary of that date; and

• (b) any period of less than twelve months which begins with the transfer date or an anniversary of that date and ends immediately before the dissolution date.

Transitional provisions with respect to reserves, etc

7

• (1) For the purposes of any statutory accounts of the Successor Company,the value of any asset and the amount of any liability transferred to the Successor Company under section 2 or 7 of the 1991 Act shall be taken to be the pre-transfer value of that asset or (as the case may be) the pre-transfer amount of that liability.

• (2) An amount equal to the accumulated realised profits of the Authority at the transfer date shall be treated as accumulated realised profits of the Successor Company.

• (3) Subject to sub-paragraphs (1) and (2) above, for the purposes of any statutory accounts of the Successor Company the amount to be included in respect of any item shall be determined as if anything done by the Authority (whether by way of acquiring, revaluing or disposing of any asset or incurring, revaluing or discharging any liability, or by carrying any amount to any provision or reserve, or otherwise) had been done by the Successor Company.

• (a) in the case of an asset or liability transferred under section 2 ofthe 1991 Act, the value or (as the case may be) the amount which would have been assigned to that asset or liability for the purposes of the last statement of accounts prepared by the Authority under section 42 ofthe Harbours Act 1964 before the transfer date if the accounting year of the Authority dealt with in that statement of accounts had ended immediately before the transfer date; and

• (b) in the case of an asset or liability transferred under section 7 ofthe 1991 Act, the value or (as the case may be) the amount assigned to that asset or liability for the purposes of the last statement of accounts prepared by the Authority in pursuance of paragraph 6 above.

• (5) Any reference in this paragraph to the statutory accounts of the Successor Company is a reference to—

• (a) any accounts prepared by that company for the purposes of any provision of the Companies Act 1985, including group accounts, and

• (b) any statement of accounts prepared by the Successor Company under section 42 of the Harbours Act 1964.

Dividend by Successor Company before laying or delivery of accounts

8

• (1) Where it is proposed to declare a distribution during the accounting reference period of the Successor Company which includes the transfer date, or before any accounts are laid or delivered to the registrar of companies in respect of that period, sections 270 to 276 of the Companies Act 1985[^f00005] (relevant accounts for determining whether a distribution is lawful) shall apply in relation to the distribution as if—

• (a) such accounts as are mentioned in sub-paragraph (2) below were accounts relevant under section 270; and

• (b) references in section 273 to initial accounts included references to any such accounts.

• (2) The accounts referred to in sub-paragraph (1)(a) and (b) above are such accounts as, on the assumptions stated in sub-paragraph (3) below,would have been prepared under Part VII of the Companies Act 1985[^f00006] in respect of the relevant year.

• (3) Those assumptions are—

• (a) that the relevant year had been a financial year of the Successor Company;

• (b) that the transfer effected by section 2(2) of the 1991 Act had been a vesting of all the property, rights, liabilities and functions to which the Authority were entitled or subject immediately before the beginning of the relevant year and had been effected immediately after the beginning of that year;

• (c) that the value of any asset and the amount of any liability of the Authority transferred to the Successor Company by virtue of the said section 2(2) had been the value or (as the case may be) the amount assigned to that asset or liability for the purposes of the statement of accounts prepared by the Authority in respect of their financial year immediately preceding the relevant year;

• (d) that any securities of the Successor Company issued or allotted on any terms before the declaration of the distribution had been issued or allotted on those terms before the end of the relevant year; and

• (e) such other assumptions (if any) as may appear to the directors of the Successor Company to be necessary or expedient for the purposes of this paragraph.

• (4) For the purposes of such accounts as are mentioned in sub-paragraph (2) above the amount to be included in respect of any item shall be determined as if anything done by the Authority (whether by way of acquiring, revaluing or disposing of any asset or incurring, revaluing or discharging any liability, or by carrying any amount to any provision or reserve, or otherwise) had been done by the Successor Company.

• Accordingly (but without prejudice to the generality of the preceding provision) the amount to be included in any reserves of the Successor Company as representing its accumulated realised profits shall be determined as if any profits realised and retained by the Authority had been realised and retained by the Successor Company.

• (5) Any such accounts shall not be regarded as statutory accounts for the purposes of paragraph 5 or 7 above.

• (6) In this paragraph—

• “the relevant year” means the last financial year of the Authority ending before the transfer date; and

• “financial year”, in relation to the Authority, means any period of twelve months ending with 31st December.

Retirement Benefits Scheme

9

The transfer effected by section 2(2) of the 1991 Act shall not affect any entitlement to benefits or other rights under any deeds or other documents constituting a scheme established by the Authority for the payment of pensions, lump sums, gratuities or other like benefits to or in respect of employees or former employees of the Authority; and accordingly for the purposes of any such deed or other document (as it has effect by virtue of section 2(2) of, and paragraphs 1 and 2 of Schedule 1 to, that Act in relation to employment with the Successor Company)—

• (a) any period of employment with the Authority shall count as employment with the Successor Company, and

• (b) any decision taken, or other thing done, before the transfer date by the Authority shall be treated as having been taken or done by the Successor Company.

Constitution of the Authority

10

• (1) For the avoidance of doubt it is hereby declared that, notwithstanding section 2(2) of the 1991 Act and paragraphs 1 and 2 of Schedule 1 to that Act, the provisions of articles 5 and 8 of, and Schedule 1 to, the Medway Ports Reorganisation Scheme 1968[^f00007], section 83 of the Medway Ports Authority Act 1973 and the Medway Ports Authority Revision Order 1974[^f00008] (which make provision as respects the constitution of the Authority) shall have no effect in relation to the Successor Company.

• (2) For the purposes of the provisions of the Medway Ports Authority Revision Order 1974 in its application to the Authority after the transfer date—

• (a) the general manager of the Successor Company (whether designated by that company as general manager, managing director or otherwise) shallbe taken to be the general manager of the Authority, and

• (b) a full-time employee of the Successor Company shall be taken to be a full-time officer of the Authority; and accordingly—

• (i) if the person who is the general manager of the Authority immediately before the transfer date becomes the general manager (however designated) of the Successor Company on the transfer date, he shall not thereby cease to be an ex-officio member of the Authority; and

• (ii) any person who, immediately before the transfer date, is a full-time officer of the Authority and (in that capacity) a member of the Authority and who on that date becomes a full-time employee of the Successor Company shall not thereby cease to be a member of the Authority.

• (3) On or at any time after the transfer date the Secretary of State may, if he thinks fit, appoint one or more persons to be members of the Authority in addition to the members appointed in pursuance of the Medway Ports Authority Revision Order 1974:

• Provided that the number of persons appointed in pursuance of this sub-paragraph and in office for the time being shall not be more than four.

• (4) For the avoidance of doubt it is hereby declared that—

• (a) those provisions of—

• (i) Schedule 1 to the Medway Ports Reorganisation Scheme 1968; and

• (ii) the Schedule to the Medway Ports Authority Revision Order 1974;

• which apply in respect of a member of the Authority appointed by the Secretary of State shall apply in respect of a person appointed in pursuance of sub-paragraph (3) above; and

• (b) the provisions of article 3(5) and (6) of the Medway Ports Authority Revision Order 1974 shall not apply in respect of a person appointed in pursuance of sub-paragraph (3) above.

Repeals

11

• (1) On the transfer date the enactments specified in Part I of the Schedule to this Scheme shall be repealed to the extent specified in the third column of that Schedule.

• (2) On the dissolution date the enactments specified in Part II of that Schedule shall be repealed to the extent specified in the third column of that Schedule.

• (3) The repeal by sub-paragraph (1) above of article 70 of the Medway Ports Reorganisation Scheme 1968 shall not apply in relation to any mortgages or other securities referred to in paragraph (1) of that article or any securities created or issued by the Authority before the transfer date. IN WITNESS whereof the Medway Ports Authority have caused their Common Seal to be hereunto affixed the 14th day of August 1991.

SCHEDULE — REPEALS

PART I — repeals taking effect on the transfer date

PART II — repeals (of enactments relating to constitution of authority) taking effect on the dissolution date

Signed

Signed by authority of the Secretary of State for Transport

Patrick McLoughlin — Parliamentary Under Secretary of State, — Department of Transport — 6th February 1992

Explanatory note

(This note is not part of the Order)

This Order confirms the Medway Ports Authority Scheme 1991, as modified by the Secretary of State for Transport.

The Scheme was made by the Medway Ports Authority under section 9 ofthe Ports Act 1991. By virtue of that section the scheme takes effect on the date on which the Order comes into force. On that date all property, rights and liabilities of the Authority and all functions conferred or imposed on the Authority by any local statutory provision are transferred to and by virtue of section 2 of the Act become property, rights and liabilities or (as the case may be) functions of the successor company specified by paragraph 3 of the Scheme.

Footnotes

[^f00001]: 1991 c. 52; for the definition of “the appropriate Minister”, see section 20(1) and (2).

[^f00002]: 1973 c.xxi.

[^f00003]: 1985 c. 6.

[^f00004]: 1964 c. 40; section 42 was substituted by the Transport Act 1981 (c. 56), Schedule 6, paragraph 10, and amended by the Companies Act 1989, Schedule 10, paragraph 26.

[^f00005]: Sections 271, 272, 273 and 276 were amended by the Companies Act 1989, Schedule 10, paragraphs 4, 5, 6 and 7.

[^f00006]: Part VII consists of sections 221 to 262A, which were inserted by the Companies Act 1989.

[^f00007]: See S.I.1969/1045.