Questions for Counsel’s Opinion should be addressed to:
Business Money, Bowdens Business Centre, Hambridge, Somerset TA10 0BP Professor Mark Watson-Gandy is a barrister at The Chambers of John McDonnell QC, 13 Old Square, Lincoln’s Inn, London WC2A 3UA
Tel: +44 (0) 20 7831 4445 Fax: +44 (0) 20 7841 5825 E-mail:
mwg@13oldsquare.com
Can you speed up the time between serving the statutory demand and presenting the petition?
Where a petition is being presented on the basis of a statutory demand and there is a serious possibility that the debtor’s property or its value will be seriously diminished during the three week period of the statutory demand, the court will allow the petition to be presented prematurely: section 270 Insolvency Act 1986. The statutory demand must have been served: Wehmeyer v Wehmeyer [2001]. The petition and evidence will need to state the grounds for the early presentation. The hearing of the bankruptcy petition will not in any event take place until at least three weeks have elapsed from the service of the statutory demand and at least 14 days have elapsed from the date the petition was served on the debtor.
Can the court hear the petition early?
The court has the power to abridge this time if the debtor consents or if it appears appropriate, for example, if the debtor has absconded: Rule 6.16 Insolvency Rules 1986. Any grounds for abridgement should be set out in the petition.
What does one need to do procedurally?
The petitioner will need to bring three, and possibly four, copies of the petition which should be presented to the court for sealing. These will comprise of:
The original petition for the court. Which court should I issue the petition in?
If an IVA is in force, the petition should be presented before the court to which the nominee’s report was presented: Rule 6.9A (6) Insolvency Rules 1986. The petition needs to be presented under new Rule 6.9A(1) IR 1986 at the Bankruptcy Registrar, Royal Courts of Justice, Thomas More Building, Strand, London, if:
the creditor’s petition is presented by a government department;
for most of the last six months he has carried on business in the London insolvency district or, if he
Business Money
And if I get paid or I change my mind I can just withdraw the petition?
If the petitioner decides that he wishes to withdraw or seek that his own petition be dismissed, he must seek permission to withdraw it and, unless the court otherwise orders, he must a fi le a witness statement: Rule 6.32 Insolvency Rules 1986. The application to withdraw cannot be heard before the return date of the petition. The witness statement should explain how the application came to be made, whether your debt has been paid off, who it was paid off by and how and whether the approval of the court was given for this arrangement.
November/December 2010 99 A copy for service on the debtor.
A copy to be exhibited to the affidavit of service.
If there is an IVA in force a copy for service on the supervisor.
The petition needs to be in the statutory
form, Form 6.7, when a creditor’s petition. The petition needs to be verified by affidavit on Form 6.13 which should be filed at the same time sworn by the petitioner, or one of its officers if the petitioner is a company, or by a responsible person who is authorised to make the affi davit and has the requisite knowledge and exhibit the petition. If more than four months have elapsed from the service of the statutory demand, the reasons for the delay need to be explained: Rule 6.12(7) Insolvency Rules 1986. You should also fi le proof of service of the statutory demand.
has not carried on business, has resided there;
the debtor is not resident in England and Wales; and
the petitioner is unable to ascertain the debtor’s residence or place of business.
Otherwise the petition should be presented at the county court with insolvency jurisdiction for the area in which the debtor has carried on his principal place of business for the longest period in the last six months or, if none, has resided.
Do I serve the petition?
A sealed copy of the petition should be personally served on the debtor. Where service is not practicable in this way an application should be made for substituted service.
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