The Milk Marketing Board (Residuary Functions) Regulations 1994

• (3) As soon as may be after the Board have made any determination under sub–paragraph (1) above, written notice of their decision shall be sent to the relevant producer in question and he may, on or before the fourteenth day after the date on which the notice was sent to him, give notice to the Board requiring the Board to refer the matter to arbitration under the provisions of this Scheme, and if that notice is given to the Board and is not withdrawn, no proceedings shall be taken by the Board otherwise than for the purposes of arbitration or to enforce the award of the arbitrator; and the arbitrator may award payment by the producer of such contribution or other sums as he thinks just but not exceeding the maximum contribution which could have been required by the Board.

• (4) The Board shall have the power to reconsider any determination under sub–paragraph (1) above in relation to the case of any producer if, upon considering any written application in that behalf by the relevant producer in question made within three months after the date of the determination, the Board is satisfied that–

• (a) there may be facts relevant to the case other than the facts which were before the Board at the time of the determination,

• (b) if such other facts had been previously known to the Board, their decision would have been influenced thereby, and

• (c) the matter has not been referred to arbitration pursuant to sub–paragraph (3) above.

• (5)

• (a) If the Board determine pursuant to sub–paragraph (4) above to reconsider any case, and if, as a result, that it is proper to vary their first determination in that case, they shall vary that determination.

• (b) The provisions of sub–paragraph (3) above shall apply to every such varied determination in like manner as it applies to an initial determination of the Board.

• (6) Subject as aforesaid, every contribution required to be paid by a decision of the Board shall be a debt due to the Board and recoverable accordingly.

• (7) A person whose name appeared upon the register of relevant producers at the date when he contravened any provision of this Scheme or of the old marketing scheme shall, notwithstanding that his name has since been removed from the Board’s register, be deemed to remain a relevant producer for the purpose of this paragraph.

PART VII. — MEETINGS OF REGISTERED PRODUCERS

78

• (1) Subject to paragraph (3) below, the Board shall at such time as they think fit in each calendar year starting with 1995 hold a general meeting of registered producers as their annual general meeting and shall specify the meeting as such in the notices calling it, and not more than fifteen months shall elapse between the date of one annual general meeting and the next.

• (1A) At any annual general meeting of the Board after 31st December 1995 the questions to be put before the meeting for a decision shall be limited to the noting of the Board’s accounts, determination of the remuneration of members of the Board and appointment of the Board’s auditors and at any such general meeting of the Board before 1st January 1996 the questions to be put before the meeting for a decision shall be limited to the noting of the Board’s accounts and appointment of the Board’s auditors.

• (1B) At every annual general meeting of registered producers after 31st December 1995, the procedure specified in paragraph 78A shall apply in respect of the remuneration of the members of the Board.

• (2) The Board may hold other general meetings of registered producers at such times as the Board think fit, but the remuneration of the members of the Board shall not be a matter for determination at any such other general meeting.

78A

• (1) The procedure referred to in paragraph 78(1B) shall operate in accordance with the remainder of this paragraph, and the remuneration of the members of the Board shall be regarded as determined in accordance with that procedure when specified in a proposal approved under this paragraph.

• (2) The Board shall prepare a proposal for such remuneration as they shall have determined is appropriate and shall bring it to the attention of registered producers as provided for in paragraph 80.

• (3) Any registered producer may make an alternative proposal for the remuneration of the members of the Board (in this paragraph referred to as a “qualifying alternative proposal”) provided that it is–

• (a) supported by the signatures of persons representing no less than one per cent of all registered producers, and

• (b) lodged in writing with the Board not later than the seventh day before the day fixed for the holding of the annual general meeting.

• (4) The Board shall bring all qualifying alternative proposals to the attention of registered producers by publishing notice of them as soon as is reasonably practicable before the day fixed for the holding of the annual general meeting in the London Gazette and in one or more newspapers or journals circulating in England and Wales.

• (5) The chairman of the meeting shall submit the Board’s proposal for the remuneration to the meeting for a vote and if (in accordance with the voting rules contained in this Part of the Scheme) it is not approved, he shall, subject to sub–paragraph (7) below, submit any qualifying alternative proposal to the meeting for a vote.

• (6) If (in accordance with the voting rules contained in this Part of the Scheme) any qualifying alternative proposal submitted to the meeting is not approved, the chairman of the meeting shall, subject to sub–paragraph (7) below, submit another qualifying alternative proposal (if any) to the meeting for a vote.

• (7) In determining in which order to submit the qualifying alternative proposals (if there are more than one) to a vote, the chairman’s discretion shall be absolute.

• (8) Without prejudice to the provisions set out in this Part of the Scheme for the adjournment of any general meeting or the demanding of a formal vote, the procedure described in sub–paragraph (6) above shall continue until–

• (a) a qualifying alternative proposal has been approved, or

• (b) all the qualifying alternative proposals have been rejected.

• (9) Where a qualifying alternative proposal has been approved, the Board may no later than the twenty–eighth day after the date of that approval apply to the Minister for the Minister to substitute in place of the remuneration for the members of the Board specified in the approved proposal such remuneration as the Minister considers to be at a level below which it would not be reasonable to expect the functions exercisable by the members of the Board to be discharged efficiently, and on receipt of such an application by the Minister–

• (a) the Minister shall proceed, taking such steps in doing so as he thinks fit, to determine that level of remuneration (whether higher than, lower than or equal to the remuneration specified in the approved proposal), and

• (b) the level of that remuneration so determined shall be treated for the purposes of this Scheme to be the remuneration specified in the approved proposal at the time the proposal was approved.

79

• (1) Subject to sub–paragraph (2) below, the chairman of every meeting of registered producers shall be the chairman of the Board if present or, in his absence, the vice–chairman unless absent.

• (2) In the absence of the chairman and vice–chairman of the Board, the chairman of any meeting of registered producers shall be appointed by the meeting.

80

Not later than the twenty–first day before the day fixed for the holding of an annual general meeting, and not later than the fourteenth day before the day fixed for the holding of any other meeting of registered producers, the Board shall send to every registered producer who is entitled to vote at the meeting a proxy form and a notice stating:–

• (a) the time and place appointed for the holding of the meeting;

• (b) the business to be transacted (which, at every annual general meeting after 31st December 1995 shall include a statement of the Board’s proposal for the remuneration of the members of the Board).

80A

• (1) Notwithstanding having published notice of a general meeting under paragraph 80 and notwithstanding any such meeting having commenced, the Board shall have the power to adjourn that meeting if they think fit and shall publish notice of the adjourned meeting in the London Gazette and in one or more newspapers or journals circulating in England and Wales.

• (2) The notice mentioned in sub–paragraph (1) above shall be published not later than the times, and shall contain the information, as are specified in paragraph 80 of this Scheme together with the address from which proxy forms may be obtained.

81

At a meeting of registered producers no business shall be transacted other than the business of which notice has been given as aforesaid by the Board.

81A

Paragraph 81 shall not restrict any registered producer at any general meeting of registered producers from raising any matter relating to the activities of the Board but, except to the extent that it is a matter specified in paragraph 78(1A), any matter so raised may not be put before the meeting for a decision.

82

At a general meeting every registered producer shall be entitled to vote.

83

At any meeting of registered producers the producers entitled to vote thereat may vote either personally or by proxy. The instrument appointing a proxy shall be in writing in such form as the Board may require, under the hand of the registered producer or his agent whose signature the Board have been authorised and requested by the registered producer in writing to accept, or, if the registered producer is a corporation aggregate, either under its seal or under the hand of a member of the board of directors or other governing body of the corporation or of its secretary or other permanent officer. The said instrument and the authority (if any) under which it is signed (or a notarially certified copy thereof) shall be deposited with the Board at such place as may be indicated in the form not later than 6 pm on the third day before the day fixed for the meeting, and in default the instrument shall be treated as invalid. A proxy shall be entitled to participate in the meeting only to the extent necessary to enable him to exercise his right to vote and to demand a formal vote.

84

Every question put before a meeting of registered producers shall be decided on a show of hands (a proxy may show his hand) unless, either before or immediately after the declaration of the result of the show of hands, a formal vote is demanded by the Board or by or on behalf of at least one third of those registered producers present in person or by proxy entitled to vote. On a formal vote the Board shall determine the form of the voting paper and shall cause to be sent to every registered producer along with the voting paper such directions for the guidance of registered producers in voting as they may determine. The voting paper shall be sent by post to the registered producers concerned as soon as practicable after the meeting at which the formal vote is demanded. The Board shall determine the last date for the receipt of completed voting papers, how the votes shall be counted, and the manner in which registered producers shall be informed of the result of the vote.

85

On a show of hands and also on a formal vote every registered producer entitled to vote shall have one vote.

87

Without prejudice to the provisions of this Part of this Scheme relating to proxies, a registered producer being a corporation aggregate may exercise any of its rights at a meeting of registered producers by a member of the board of directors or other governing body of the corporation, or by its secretary or other permanent officer, and a registered producer who is a partnership may exercise any of their rights at such a meeting by any of their partners.

88

At any meeting of registered producers the declaration of the chairman as to the result of any show of hands shall be final. In the event of an equality of votes, whether on a show of hands or on a formal vote, the chairman of the meeting at which the show of hands took place or at which a formal vote was demanded (as the case may require) shall be entitled to an additional or casting vote.

PART VIII. — AMENDMENT AND REVOCATION OF SCHEME AND WINDING UP OF THE BOARD

91

Part V of the 1986 Act (which relates to the winding up of unregistered companies) shall apply in relation to the Board subject to the modifications set out in paragraphs 91A and 91B.

91A

• (1) A petition for winding up of the Board may be presented by the Minister as well as any person authorised by section 124(1) of the 1986 Act (as applied in relation to the Board by section 222(1) of that Act) to present a petition for winding up of the Board.

• (2) Sections 202, 203 and 205 of the 1986 Act shall not apply in relation to the Board.

• (3) For the purposes of sections 221, 222 and 224 of the 1986 Act, the principal place of business of the Board is deemed to be the office of the Board the address of which has been notified to the Minister under paragraph 6(2).

• (4) Section 221 of the 1986 Act shall apply in relation to the Board as if paragraph (a) of subsection (5) of that section were omitted.

• (5) Section 223 of the 1986 Act shall not apply in relation to the Board.

• (6) Section 224 of the 1986 Act shall apply in relation to the Board as if the words “or any member of it as such” were omitted.

91B

In the event of the final liquidation of the Board under the 1986 Act and for the purposes of section 226 of the 1986 Act, and whether or not the powers conferred on the Board and the Minister by section 17 of the Act have been exercised, every eligible producer shall be liable to contribute to the payment of the debts and liabilities of the Board and to the payment of the costs and expenses of the winding up and his liability shall be an amount assessed in the manner and subject to the limitations which are provided for in paragraph 92 but save as aforesaid no person shall be liable to contribute to the assets of the Board in the winding up by reason only of his being or having been a producer registered with the Board or a member of the Board.

92

Contributions under paragraph 91B shall be assessed, in relation to each contributor, proportionately to the maximum number of milch cows which were in his possession in England and Wales at any one time during the year immediately before the presentation of the petition for winding up, and shall not in any case exceed one pound sterling per cow.

PART IX. — MISCELLANEOUS

93

• (1) Any relevant producer who is aggrieved by an act or omission of the Board arising in the period prior to Vesting Day or by any assessment made by the Board under paragraph 71(2) may refer the matter to the arbitration of a single arbitrator to be agreed upon between the producer and the Board or, in default of agreement, to be nominated by the Minister on the application of either party, and the arbitrator may make such order in the matter as he thinks just.

• (2) Where any relevant producer gives notice to the Board under paragraph 77(3), that notice shall be treated for the purposes of this paragraph as requiring the Board to make the reference to which sub–paragraph (1) above refers.

• (3) The Arbitration Act 1950[^f00009] shall apply to every arbitration consequent on a reference under this paragraph.

94

Any requirement of this Scheme that a document shall be sent to, or served on, a person by the Board shall be deemed to have been complied with if, within the period (if any) limited for the sending or service of the document, the document is despatched to him by post, to his address as the same appears in the register and with the postage pre–paid.

95

For the purposes of this Scheme except paragraph 69A every cow which is for the time being upon premises occupied by a producer shall, unless the contrary be proved, be deemed to be in the possession of that producer.

SCHEDULE 4 — B RESERVE FUND

1

• (1) The Board shall maintain the B Reserve Fund in a separate account which shall be a deposit account opened in their name at a clearing bank and designated “B Reserve Fund Account”.

• (2) The Board shall keep and maintain records of–

• (a) payments into,

• (b) withdrawals from, and

• (c) interest accrued to,

the account mentioned in paragraph (1) above.

2

• (1) The milk receipt retentions shall be payable to end year producers in accordance with, and to the extent provided for in, this Schedule.

• (2) Any amount which in accordance with this Schedule the Board determine shall be paid as an interim payment for the purpose of repayment of the milk receipt retentions (in this Schedule referred to as “interim payment”) or as a final payment for that purpose (in this Schedule referred to as “final payment”) shall be divided among the producers in respect of whose milk the milk receipt retentions have been made proportionately to the amounts of such retentions.

• (3) Subject to sub–paragraph (4) below, the Board shall complete the payments referred to in sub–paragraph (2) above before they make any interim or final distributions.

• (4) Sub–paragraph (3) above shall not prohibit the earlier transfer or, as the case may be, issue and allotment referred to in sub–paragraph (a) of the definition of “relevant asset total” in regulation 2(1).

3

No sum may be withdrawn from the B Reserve Fund unless–

• (a) such withdrawal is in accordance with paragraphs 4, 6, or 7 below, and

• (b) the authority or consent of the Minister has first been obtained.

4

• (1) Subject to paragraph 3(b) above, and provided that the condition specified in paragraph 5 below is complied with, the Board may withdraw moneys standing to the credit of the B Reserve Fund in order to–

• (a) discharge any actual liabilities–

• (i) as they fall due for payment;

• (ii) upon the winding up of the Board;

• (b) make interim and final payments.

• (2) The Board shall hold any moneys not so withdrawn as a reserve in order to meet the Board’s contingent liabilities or make further interim payments or apply them in accordance with paragraph 6 below.

5

The condition mentioned in paragraph 4 above is that the Board shall withdraw moneys under that paragraph only if they would otherwise be unable to discharge such liabilities or make such payments.

6

Subject to paragraph 3(b) above, the Board shall withdraw all moneys standing to the credit of the B Reserve Fund (to the extent that such money is not withdrawn upon the winding up of the Board for the purpose of discharging actual liabilities) and apply them as a final payment at the final liquidation of the Board.

7

• (1) Subject to the provisions of this paragraph, where–

• (a) the Board have withdrawn funds from the B Reserve Fund to meet, and have met, their liabilities, and

• (b) there are moneys standing to the credit of the general fund,

the Board shall apply such moneys to make a final payment in accordance with sub–paragraph (2) below.

• (2) The amount to be paid in the circumstances mentioned in sub–paragraph (1) above shall be an amount which is equal to all the withdrawals which have been made from the B Reserve Fund for the purpose of meeting liabilities of the Board (other than liabilities in respect of repayment of the milk receipt retentions), increased or decreased correspondingly with any adjustment made to the total of the B Reserve Fund under paragraph 8 below.

• (3) This paragraph is subject to paragraph 3(b) above.

8

Any net surplus or deficit in funds arising from the Board’s normal trading activities at Vesting Day shall be added to or subtracted from the B Reserve Fund prior to determining the total amount to be paid by way of final payments.

9

As long as moneys remain in the B Reserve Fund it shall be reviewed by the Minister at the expiry of the sixth calendar month after Vesting Day and thereafter at intervals of six months.

10

The Minister shall notify the Board of any amount by which the B Reserve Fund appears to the Minister on a review under paragraph 9 above to exceed the reasonable requirements of the Board and on such notification the Board shall arrange for that amount to be withdrawn from it by way of interim or final payments.

11

In this Schedule “milk receipt retentions” means the sum which in accordance with provisions of the approved scheme relating to the B Reserve Fund–

• (a) is retained by the Board from their receipts for milk supplied to them by end year producers in the final trading period (being not less than 0.2 pence per litre of milk supplied by every such producer in that period), and

• (b) is paid by the Board into the B Reserve Fund.

SCHEDULE 5 — DISPOSAL OF DAIRY CREST SHARES

1

This Schedule shall apply to the extent that the Dairy Crest shares are retained.

2

As soon as practicable after Vesting Day the Board shall proceed to determine the feasibility of achieving a flotation of the company.

3

• (1) In determining the feasibility of achieving a flotation of the company and in assessing the timetable for such flotation the Board shall have regard to all relevant considerations.

• (2) Subject to sub–paragraph (1) above, the considerations to which the Board may have regard shall include–

• (a) the circumstances which prevented the achievement of a flotation prior to Vesting Day,

• (b) the continuing suitability of the company for the admission of its ordinary share capital to the Official List of the London Stock Exchange,

• (c) their views and the views of their financial advisers, the company and the company’s financial advisers as to the company’s suitability for a flotation and the stock market conditions for such flotation,

• (d) the amount of funding which the Board require to achieve from the disposal of their interest in the company, and

• (e) such other factors as they, the company and their own and the company’s advisers consider to be relevant.

4

If the Board determine that it is feasible, and that it is in the interests of registered eligible producers, to proceed with a flotation of the company, the Board shall take such steps as they consider necessary or appropriate to undertake the objective specified in paragraph 5 below.

5

The objective mentioned in paragraph 4 above is to implement the flotation in the shortest time scale that (having regard to all relevant considerations) the Board consider appropriate unless any material change in circumstances arises which has the effect that the flotation is no longer considered by the Board and their advisers and other persons mentioned in paragraph 3(2)(c) above to be feasible or consistent with the interests of registered eligible producers.

6

In implementing the flotation of the company the Board may give such undertakings, warranties and indemnities and bear such costs as they consider necessary or appropriate having regard to the advice of their advisers.

7

Nothing in paragraphs 2 to 6 above shall be construed as restricting the Board from disposing of their interest in the company by such other method as they consider appropriate if, having regard to the interests of registered eligible producers, they consider the advantages of proceeding with that method to outweigh the advantages of proceeding with a flotation.

8

Until such time as their entire interest in the share capital or business of the company has been disposed of the Board shall, subject only to taking any steps they consider necessary to protect the interests of registered eligible producers–

• (a) consult with the management of the company as to the Board’s plans for the disposal of their interest;

• (b) not seek to use their rights as a shareholder to intervene in commercial decisions made by the company in the day to day management of its business;

• (c) to the extent that any goods or services are required to be supplied by the Board to the company or by the company to the Board, ensure that such supplies are made on reasonable arm’s length terms;

• (d) to the extent that any arrangements are required to be entered between the Board and the company with regard to the financing of the Board, ensure that such arrangements are entered into on reasonable arm’s length terms.

9

In this Schedule “company” means Dairy Crest Limited, Dairy Crest plc, or any other company formed to acquire the shares or business of Dairy Crest Limited.

Signed

In witness whereof the Official Seal of the Minister of Agriculture, Fisheries and Food is hereunto affixed on 26th October 1994.

William Waldegrave — Minister of Agriculture, Fisheries and Food

Signed by authority of the Secretary of State for Wales

Gwilym Jones — Parliamentary Under Secretary of State, Welsh Office — 27th October 1994

Explanatory note

(This note is not part of the Regulations)

In accordance with the Agriculture Act 1993 (“the Act”) the Minister of Agriculture, Fisheries and Food and the Secretary of State for Wales have granted an application by the Milk Marketing Board (“the Board”) for the approval of a scheme of reorganisation (“the approved scheme”) which provides for the transfer under section 11 of the Act (“the transfer”) of certain of the Board’s property, rights and liabilities on 1st November 1994 and for its other assets to remain with the Board for distribution to milk producers who were registered with the Board during the period 1st April 1992 to 31st March 1993.

As a result of the transfer, section 1 of the Act provides that the Milk Marketing Scheme 1933 (“the old marketing scheme”), which constitutes the Board, is also revoked with effect from 1st November 1994 although, under section 13 of the Act, the Board shall not be deemed to be dissolved by reason of the revocation but shall continue to exist in residuary form and so much of the old marketing scheme as relates to the winding up of the Board shall continue in force, subject to Regulations which may be made under section 14 of the Act.

These Regulations, which come into force on 1st November 1994, make provision for the purpose of giving effect to so much of the approved scheme as relates to the Board in the period after the transfer and make provision in relation to the constitution of the Board and for the purposes of enabling the Board to wind up its affairs. In accordance with that section the Regulations provide for certain provisions of the old marketing scheme to continue to have effect, subject to certain modifications, and contain new provisions.

A compliance cost assessment has been prepared and copies can be obtained from the Ministry of Agriculture, Fisheries and Food, Whitehall Place, London SW1A 2HH. A copy has been placed in the library of each House of Parliament.

Footnotes

[^f00001]: 1993 c. 37; section 24(2) contains a definition of “the appropriate authority”.

[^f00002]: 1958 c. 47.

[^f00003]: 1986 c. 45.

[^f00004]: 1985 c. 6.

[^f00005]: See S.R. & O. 1933 No. 789, as amended by S.R. & O. 1936/767, 1937/228 and 744, 1939/324 and S.I. 1950/1029, 1955/946, 1969/1812, 1977/900, 1979/249, 1981/323, 1981/864, 1984/1330, 1986/83, 1987/735, 1988/132 and 1992/3142.

[^f00006]: OJ No. L171, 28.6.78, p.14.

[^f00007]: OJ No. L188, 26.7.79, p.29.

[^f00008]: Paragraph 56 of the old marketing scheme made provision for the exemption of producers from the operation of certain provisions of Part VI of that scheme.

[^f00009]: 1950 c. 27.