Winding Up Petition [2024 Guide]

In the context of the English legal system, a winding-up petition is a formal legal document filed by a creditor. It can be used either to

1. initiate the liquidation process of a company that is unable to pay its debts; or
2. As a legal threat to the debtor to get a debt paid.

Winding up petitions must be used carefully if they are being issued to try and get a debt paid.  The Courts tend to frown on the use of winding up petitions for debt recovery purposes, even though everyone from HMRC downwards tends to use them for this purpose. 

Our legal team at FWJ can help advise you on when petitions can best be used to recovery debts as part of the debt recovery process.  Or alternatively, if you are on the receiving end of a petition, we can look in to this and whether it is being correctly used or is an abuse of process.

The Insolvency Act 1986

The winding-up petition is governed by the Insolvency Act 1986 and is a crucial step in the process of winding up a company.

Framework for winding up petitions

The Insolvency Act 1986, in conjunction with the Civil Procedure Rules (CPR), provides the framework for winding-up petitions. Here’s an explanation of the key points:

• Initiating the Winding up petition: According to Section 124 of the Insolvency Act 1986, a creditor can present a winding-up petition to the court if the debtor company owes them a debt of £750 or more. This is a key threshold that must be met before a creditor can commence the winding-up process. It remains a low threshold and much lower than the equivalent threshold for a bankruptcy petition – which is £5,000

• Grounds for winding up: Section 122 of the Insolvency Act 1986 sets out the grounds on which a winding-up petition can be presented. The most common ground is when the company is unable to pay its debts. This is known as a “compulsory winding-up” and can be based on a statutory demand that has not been complied with, or the creditor can prove the company is unable to pay its debts as they fall due.

• Procedure and filing: The Civil Procedure Rules, specifically Parts 7 and Part 8, sets out the procedure for filing a winding-up petition. The creditor must complete a prescribed form known as Form 4.1, which includes details about the debt owed, the grounds for the petition, and evidence of the company’s inability to pay its debts. The completed form is then filed at the relevant court, usually the High Court or a specified County Court. At FWJ we can help prepare these documents and file them on line at court.

• Advertisement and notice: After the petition is issued, it must be advertised in the London Gazette according to Rule 7.16 of the Insolvency Rules 2016 in order to have the company wound up. Advertising in the London Gazette serves as notice to the public and other creditors that a winding-up petition has been presented against the company.

• Response from the debtor company: Once a winding-up petition is served on the company, the company has a limited time (usually 5 business days) to respond to the petition in order to avoid the risk of it being advertised in the London Gazette. The company can either dispute the petition, pay the debt, or propose a voluntary arrangement to the creditors. At FWJ we have an expert team who can deal with the right responses to a winding up petition – from settlement negotiations, disputes, injunctions and withdrawal.

•  Winding up petition hearing: If the company fails to respond to the petition, fails to pay the debt or disputes the petition, a court hearing will take place. At the hearing, the court will consider the evidence presented by both parties and decide whether to grant the winding-up order, adjourn the petition or dismiss the petition.

• Consequences of a Winding up Order: If the winding-up order is granted, the court appoints a liquidator to take control of the company’s assets, sell them, and distribute the proceeds to the creditors according to the statutory order of priority.

It’s important to note that the filing of a winding-up petition is a serious step and can have significant implications for the company. It is usually seen as a last resort for creditors when all other attempts to recover the debt have failed.

It is vital to make sure that a winding up petition and the supporting witness statement are properly drafted in accordance with the court rules (Rules 7.5 of the Insolvency (England and Wales) Rules 2016.

Failure to properly draft the petition can lead to it being invalidated and struck out – leading to possible heavy costs orders against the petitioner. Our team can help you avoid mistakes. We can also help avoid delay – we understand that everyday lost in chasing a debt reduces the overall chances of getting paid. We normally issue petitions the same day as instruction.

What a petition must contain

The drafting process for a winding up petition is a complex one. Applying for a winding up petition means a series of detailed information must be included accurately in the petition in order for it to be issued.  We would strongly recommend you take advice from our expert team at FWJ to make sure mistakes are not made.

Rules 7.5 of the Insolvency (England and Wales) Rules 2016 set out the following

1. The petition must contain—

(a)  the name of the court (and hearing centre if applicable);

(b)  the name and address of the petitioner;

(c)  identification details for the company subject to the petition;

(d)  the company’s registered office (if any);

(e)  the date the company was incorporated and the enactment under which it was incorporated;

(f)  the total number of issued shares of the company and the manner in which they are divided up;

(g)  the aggregate nominal value of those shares;

(h)  the amount of capital paid up or credited as paid up;

(i)  a statement of the nature of the company’s business if known;

(j)  the grounds on which the winding-up order is sought;

(k)  where the ground for the winding-up order is section 122(1)(a), a statement that the company has by special resolution resolved that the company be wound up by the court and the date of such resolution;

(l)  where the ground for the winding-up order is section 122(1)(f) or 221(5)(b) and a statutory demand has been served on the company, a statement that such a demand has been served and the date of service and that the company is insolvent and unable to pay its debts;

(m)  a statement whether the company is an Article 1.2 undertaking;

(n)  a statement whether the proceedings will be main, secondary, territorial or non-EC proceedings and that the reasons for so stating are given in a witness statement;

(o)  a statement that in the circumstances it is just and equitable that the company should be wound up;

(p)  a statement that the petitioner therefore applies for an order that the company may be wound up by the court under the Act, or that such other order may be made as the court thinks just;

(q)  the name and address of any person on whom the petitioner intends to serve the petition; and

(r)  the contact details of the petitioner’s solicitor (if any).

2. The petition must also contain a blank box for the court to complete with the details of the venue for hearing the petition.

Supporting witness statement of verification

A winding up petition must also be supported with correctly worded witness statement exhibiting the petition. Again, failure to do this properly can lead to the petition being thrown out.

Rules 7.6 of the Insolvency (England and Wales) Rules 2016 deals with the requirements of the supporting witness statement

1. The petition must be verified by a statement of truth.

2. Where the petition is in respect of debts due to different creditors then the debt to each creditor must be verified separately.

3. A statement of truth which is not contained in or endorsed upon the petition must identify the petition and must contain—

(a) identification details for the company;

(b) the name of the petitioner; and

(c) the name of the court (and hearing centre if applicable) in which the petition is to be presented.

4. The statement of truth must be authenticated and dated by or on behalf of the petitioner.

5. Where the person authenticating the statement of truth is not the petitioner, or one of the petitioners, the statement of truth must state—

(a) the name and postal address of the person making the statement;

(b) the capacity in which, and the authority by which, the person authenticates the statement; and

(c) the means of that person’s knowledge of the matters verified in the statement of truth.

6. If the petition is based on a statutory demand, and more than four months have elapsed between the service of the demand and the presentation of the petition, a witness statement must explain the reasons for the delay.

7. A statement of truth verifying more than one petition must include in its title the names of the companies to which it relates and must set out, in relation to each company, the statements relied on by the petitioner; and a clear and legible photocopy of the statement of truth must be filed with each petition which it verifies.

8. The witness statement must give the reasons for the statement that the proceedings will be main, secondary, territorial or non-EC proceedings.

Carrying out a search of the central index

It is only possible to have one winding up petition issued against a company at any one time.

Therefore, before going through the effort of drafting a petition, it is sensible to undertake a search to see if there is already one in existence.

A winding up petition search can be undertaken at the companies court central index of winding up petitions at any time. There is a special number to ring at the high court central index of winding up petitions to check whether a winding up petition has been issued against a company.

However, it can be difficult to get through to that number – but we can help speed this up.

London Gazette Searches

Other types of winding up petition searches include a search of the winding up petition London Gazette to see whether the winding up petition has been advertised at all. That can be very important if we are acting for a company who has received a winding up petition. A winding up petition advertisement in the London Gazette can be very damaging for a company indeed.

Petition: presentation and filing at Court

The formalities are governed by rule 7.7 set out below.  However, we would strongly recommend that you use our team to apply for the winding up petition and have it filed at court. It is easy to get wrong, especially if you do not have the online issuing and payment link with the court already set up

The process for issuing a winding up petition has changed a while ago. Previously, the petition document would be prepared and then taken down to the relevant companies court issuing counter for the winding up order to be issued. That would need a cheque to accompany it.

However, the companies court now only accepts issuing on-line.

Therefore, to issue a winding up petition, you must have the relevant on-line account access and ability to pay the high court fee on-line. This can present difficulties for creditors looking to issue the petition themselves and we would strongly recommend using our services not only as winding up order experts but also the ability to issue on-line documents at court. This is also true for other aspects of the winding up petition process if you ultimately are looking to obtain a winding up order.

Rule 7.7 of the Insolvency Rules sets out

(1)     The petition must be filed with the court.

(2)     A petition may not be filed unless—

• (a) a receipt for the deposit payable to the official receiver is produced on presentation of the petition; or
• (b) the Secretary of State has given notice to the court that the petitioner has made suitable alternative arrangements for the payment of the deposit and that notice has not been revoked.

(3)     A notice of alternative arrangements for the deposit may be revoked by a further notice filed with the court.

(4)     The court must fix a venue for hearing the petition, and this must be endorsed on the petition and the copies.

(5)     Each copy of the petition must have the seal of the court applied to it, and must be delivered to the petitioner.

Court Fees for a Winding Up Petition

To have a winding up petition issued, you will have to pay the following fees

• Court fee – currently £302
• Official Receiver deposit – £2,660 (£2,550 is refundable if the company is not wound up)

Five Reasons to instruct the team at FWJ

• Legal expertise. Our expert team specialising in debt recovery, litigation and insolvency. We have a thorough understanding of the complex legal framework and requirements involved in preparing a winding-up petition.

• Avoid procedural errors. The process of preparing a winding-up petition involves strict adherence to rules and procedures. Our team can help ensure all necessary documents are correctly prepared, filed, and served to avoid potential pitfalls and delays. Trying to do it yourself is not advised – it can lead to unintended consequences – which can be very costly

• Maximise your chances of success. Our team can assess the strength of your case, ensuring that you have valid grounds for the winding up petition and supporting evidence, which can increase the likelihood of success.

• We can navigate complex legal issues. In some cases, legal complexities may arise, requiring expert advice. Our team can handle any legal challenges or complexities that may arise during the process.

• Protecting your interests. Our team will always act in your best interests, advocating on your behalf throughout the winding-up process and safeguarding your rights as a creditor or debtor.

Having got your petition issued, it is vital to comply with the court rules when it comes to serving a petition. Failure to do so can lead to a petition being dismissed and a heavy costs order payable by the petitioner. Whether you are looking to serve a petition or have been on the receiving end of one – we have the team to help.

The Service Rules

The service of the winding-up petition must be done correctly and promptly. The service process is governed by the Civil Procedure Rules (CPR), Part 6, specifically Rules 6.3 and 6.4.

Rule 6.3. This rule outlines the methods of service that can be used, such as personal service, leaving it at the company’s registered office, or sending it by post to the company’s registered office.

Rule 6.4 This rule sets out the timeframe for service, which must be not less than seven business days before the date of the hearing.

The Certificate of Service

After the winding-up petition has been served, the person who served it must complete a Certificate of Service, as required by Rule 7.5 of the Insolvency (England and Wales) Rules 2016. This certificate confirms that the petition has been properly served on the debtor company.

• A certificate of service is a formal document, which is filed at court prior to the winding up petition hearing, which confirms to the court that the petition has been properly served on the company.

• Certificates of service are necessary in case the debtor company argues that they did not receive a copy of the winding up petition or were not served with the winding up petition. If the court has a certificate of service before them confirming that the winding up petition was served at the correct address, then they are likely to dismiss such an argument by the debtor company.

• A certificate of service is required to be in a set format and to be verified by a statement of truth. This is why we would recommend using a process server to serve the winding up petition, as part of their service will be to provide a valid certificate of service.

• Certificates of service need to be filed at court prior to the hearing. Although there is no set time frame for when this has to be done, they should be filed with the certificate of compliance at the latest, namely not less than five business days before the petition hearing.

Why is proper service so important?

Proper service of the winding up petition must be carried out as otherwise the winding up order might not be granted.

• evidence of service must be provided to the court in the form of an affidavit of service demonstrating proper service of the winding up petition in accordance with the court rules. Without this, a creditor cannot wind up the debtor and place it into liquidation;
• defective service of a winding up petition can also lead to it being dismissed or the hearing adjourned. And costs orders against the petitioner.

Always use an experienced process server

At FWJ we have access to highly trained process servers who can ensure that the winding up petition is properly served whatever the circumstances. In addition, our process server can also report on the debtor and whether it looks like it is still trading or not. This is often vital information at an early stage which can indicate if you are likely to recover the winding up petition debt.

We would always recommend using an experienced process server to ensure full compliance of the rules.  The cost of doing this is in the region of £100 and is money very well spent in our opinion.

Service provisions – the Rules in full

Paragraph 2 of Schedule 4 to the Insolvency (England and Wales) Rules 2016 deals with Service of the Winding Up Petition as set out below

Paragraph 2

(1)  A winding-up petition must be served at a company’s registered office by handing it to a person at that address who—

• (a) at the time of service acknowledges being a director, other officer or employee of the company;
• (b) is, to the best of the knowledge and belief of the person serving the petition, a director, other officer or employee of the company; or
• (c) acknowledges being authorised to accept service of documents on the company’s behalf.

(2)  However if there is no one of the kind mentioned in sub-paragraph (1) at the registered office, the petition may be served by depositing it at or about the registered office in such a way that it is likely to come to the notice of a person attending the office.

(3)  Sub-paragraph (4) applies if—

• (a) for any reason it is not practicable to serve a petition at a company’s registered office;
• (b) the company has no registered office; or
• (c) the company is an unregistered company.

(4)  Where this paragraph applies the petition may be served—

• (a) by leaving it at the company’s last known principal place of business in England and Wales in such a way that it is likely to come to the attention of a person attending there; or
• (b) on the secretary or a director, manager or principal officer of the company, wherever that person may be found.

The service of a winding up petition must be verified by a certificate of service and the rules relating to certificates of service are set out at paragraph 6 to Schedule 4 of the Insolvency (England and Wales) Rules 2016, as set out below:

Certificate of service

Paragraph 6.

(1)     The service of an application or petition must be verified by a certificate of service.

(2)     The certificate of service must—

• (a) identify the application or petition;
• (b) identify the company, where the application or petition relates to a company;
• (c) identify the debtor, where the application relates to an individual;
• (d) identify the applicant or petitioner;
• (e) specify—
  • (i) the court or hearing centre in which the application was made or at which the petition was filed, and the court reference number,
  • (ii) the date of the application or petition,
  • (iii) whether the copy served was a sealed copy,
  • (iv) the person(s) served, and
  • (v) the manner of service and the date of service; and
• (f) be verified by a statement of truth.

(3)     Where substituted service has been ordered, the certificate must be accompanied by a sealed copy of the order for substituted service.

Five Reasons to instruct FWJ to help with the service process

Understanding the legal requirements. Our experienced team is well-versed in the specific legal requirements and procedures for serving a winding up petition. We can ensure that all necessary steps are taken, preventing errors that could render the service invalid. We also have brilliant contacts with process servers.

Knowledge of CPR and Insolvency Rules. Serving a winding-up petition requires compliance with the Civil Procedure Rules (CPR) and the Insolvency (England and Wales) Rules 2016. Our team can navigate these rules effectively to serve the petition correctly.

Timeliness and efficiency. Our team can act promptly in serving the winding-up petition, ensuring it is done within the required timeframe, as prescribed by the CPR and Insolvency Rules.

Personal safety and avoiding confrontation. If personal service is required, an experienced process server can handle the process on your behalf, ensuring that it is done professionally and without risking any confrontations or disputes with the debtor company.

Handling challenges and objections: If the debtor company challenges the service or raises objections, our team are very experienced in addressing these issues and can provide appropriate legal responses to protect your interests.

Introduction

If a winding up petition is genuinely disputed – urgent action is often required. As a debtor you can apply for the petition to be struck out or for an injunction to stop it being advertised in the London Gazette. As a creditor, you need to try to extricate yourself from the situation with as little damage as possible. Our superb team can help.

Whatever side your find yourself on – our team is able to help.

If you are served with a petition

In terms of the debtor company served with a winding up order, if it believes the debt is genuinely disputed, then it can take the appropriate action to have the winding up petition dismissed from court.

A winding up petition should only ever be issued in circumstances where the debt is undisputed (or at least £750 of it is undisputed).

If the debt is genuinely disputed and a winding up petition has been issued, the winding up court will very much frown upon that process and can have it struck out for abuse of process. This is because the courts generally view winding up petitions as something which should only be issued where the company is genuinely insolvent and should be wound up so that there can be a fair distribution of the remaining assets to the creditors of the company.

It is possible to defend a winding up petition on a number of different grounds. For example,

• The winding up petition may be genuinely subject to a dispute.
• If this is the case, the petition should be dismissed from court and the creditor should commence proceedings in the right court namely the county court or the high court
  • If the winding up order debt is genuinely disputed, then the winding up procedure is the wrong one for a petitioner to use in order to collect the debt. The right procedure is a CPR Part 7 claim in the traditional court and not the winding up insolvency court. If the debt is subject to a genuine dispute the court will strike out the winding up petition and order costs in your favour. However, legal advice is highly recommended to consider whether you have a genuine dispute or not.
  • For example, simple cashflow difficulties and inability to pay now is not a genuine dispute. However, a dispute over whose terms and conditions bind the contract or whether the goods/services supplied are defective could constitute genuine grounds to dispute the debt. So long as you can dispute the debt and show that less than £750 is genuinely due and owing, then the petition can be struck out.

• If you have a counterclaim against the petitioner, this can lead to the petition being struck out. For example, if the debt claimed is £7,000 but you have a separate claim against the petitioner in respect of another matter or for losses arising out of the contract under which the goods or services were supplied, then this can lead to the petition being struck out if your claim overreaches their claim. For example, if your claim is £8,000 then the net effect is that your position is that the petitioner owes you the money and not the other way around. This can lead to a winding up petition being struck out.

• If the winding up petition document is defective or procedurally wrong in any way, this can lead to the winding up order being struck out. If the petitioner has tried to prepare the document without legal advice, it can often have procedural errors in it. Equally, if the winding up petition is not served correctly in accordance with the winding up petition company law rules, then this too can lead to the winding up petition being dismissed. Proper adherence to the winding up procedure is vital. Failure to do so can lead to winding up petition dismissal.

• The winding up petition may be an abuse of process and being used to “bully a debtor” into payment. In those circumstances, the petition can be dismissed by way of an application to the court.

Therefore, if a debt is genuinely disputed

• the court can strike the winding up petition out; and
• order very significant costs against the petitioning creditor.

Whilst the petitioning creditor can then still issue a traditional county court or high court claims, it will find itself having been on the wrong end of a large costs order for abuse of the winding up process.

Winding up petitions are something which should be used with great care and in circumstances where it is unclear if the debt is genuinely undisputed, should not be used.

Applying for an injunction

A respondent to a winding up petition may also make an application for an interim injunction to help it avoid the worst effects of a winding up petition.

An interim injunction is a type of court order which prohibits a creditor from advertising the petition in the London Gazette. It is the process of advertising the winding up petition in the London Gazette which often leads to the failure of the debtor company. This is because

• the company bank account will be frozen by the bank and the debtor company cannot make payments out of the bank account;
• other creditors of the company also become aware of the existence of the winding up petition and can support the winding up petition;
• suppliers will refuse to supply unless it is cash on delivery;
• the sheer weight of numbers can then lead to difficulties by the debtor company which without the necessary validation order from court in order to continue trading will spell the end of the life of the company.

Injunctions can be obtained in the following situations:

• Before a petition is issued at court – if you are aware of the threat and the creditor won’t withdraw the threat. The interim injunction could stop the petition being issued in the first place

• Once the petition has been issued and served – to stop it being then advertised in the London Gazette – and becoming public knowledge.

Five reasons to instruct FWJ for the defence process:

Legal expertise. Our defence team specialise in insolvency and litigation law and possesses a comprehensive understanding of the legal framework and intricacies involved in defending a winding-up petition.

Strategic planning. Our petition defence team can devise a strategic approach to defend the petition, assessing the company’s financial position, identifying potential weaknesses in the creditor’s case, and formulating a strong defence strategy.

Evidence gathering. Out team can work with you to gather and present the key evidence to get the petition removed, including financial records, contracts, and other documentation, to support the company’s defence and challenge the creditor’s claims effectively. We can turn this in to the detailed witness statement evidence you will need to present to court.

Court representation. We can arrange the right barrister to attend court on your behalf if the petition goes to a full hearing. They will add credibility to the defence and ensures that all legal arguments and evidence are presented persuasively to the judge.

Negotiation skills. Our team can often help negotiate the removal of the winding up petition without a full hearing – saving you legal costs and time.

Let the FWJ petition defence team help – call today

Receiving a winding up petition can be a very frightening experience. With our team you will be in safe hands. Since 2002, our team has dealt with well over a thousand petitions over the years and successfully resolved many of them to the benefit of our clients. Let our team help you today.

If you have received a winding up petition and dispute it, then we can help you in the process of fighting a winding up petition. We appreciate that a petition can be a scary document to receive. We can help take the stress out of the situation.

Our team at FWJ are experts in negotiating settlement of a petition debt – whether acting for the creditor or the debtor.

Ultimately in winding up situations – the creditor doesn’t want to wind up the company as it will cost it further money and it wont get its debt back.  Equally the debtor wont want to get wound up as the company will cease to exist.  Therefore, it is often in the interest of both sides to try and reach a negotiated settlement if at all possible.

Options include

• Instalment payment over a period of time. This is quite common, especially f the debtor is tight on money.  However, there are risks – if the petition remains in place, it might get supported by another creditor and go under. Careful thought needs to be given as to how long the petition remains in place at court.
• Offering a reduced lump sum payment. Again, this might suit both sides – money is paid to the creditor and the petition is dismissed – removing the risk of it being supported by another creditor.
• Paying the debt in full but bearing your own legal costs.  Sometimes this makes sense for the creditor – it is better to get the debt paid and bear your own legal costs rather than risk the petition being supported and having to hand back any money the debtor has paid since the petition was issued.
• Agreeing an adjournment of the petition whilst the debtor arranges funding from elsewhere

Whatever your situation – we are likely to have seen it before. Our team can help negotiate settlements even in the trickiest of situations.

Get the petition dismissed as soon as you can

If the winding up petition debt is paid in full, there are still very important steps to take to avoid ongoing risks. As the petition you want it dismissed in order to protect any money you have been paid. As the debtor, removing the petition from the court record can stop the bank freezing the account or the petition being supported by another creditor. Let us help.

If the debtor company is able to pay the winding up petition debt in full, then it is sensible for it to do so as soon as possible. Once the petition debt has been paid in full, the winding up order can be withdrawn from court by consent and dismissed.

What to do about legal costs – more detail

Often, the petitioning creditor will ask for its costs of the winding up process to be paid in full and the debtor company normally agrees to payment of costs.

Otherwise, there is a danger that if the debtor company only pays the winding up petition debt, it can be wound up for the legal costs although this would be unusual.

The real danger of arguing for too long over legal costs if the debt has been paid is that another creditor may support the winding up petition, take it over and then wind up the company.

It is also always better for the debtor company to have the petition struck from the court record in order to safeguard its interests and avoid it becoming public.

Negotiating with HMRC

A winding up order for non payment of taxes can be frightening. But there are always things which can be done including

• negotiated settlements,
• company restructuring,
• disputing the claim,
• seeking business funding or
• applying for a validation order as just some of the choices.

We boast Andy Lynch as a member of our petition defence team. Andy spent 18 years at HMRC before joining the firm. There is nothing he doesn’t know about HMRC claims – including HMRC winding up petitions. His expertise can help avoid HMRC winding your company up.

How we can help creditors

If you are a creditor, the whole purpose of the winding up petition procedure is often to help recover the petition debt.

Therefore, it is often much more sensible to enter into a sensible repayment agreement if the debtor can’t pay the debt and costs in one go. The alternative is to advertise the winding up petition and wind the company up. But this will almost certainly mean that you get no money back. As soon as a petition is advertised, it is likely that other creditors will support the winding up petition, the company’s bank account will be frozen and the company fail.

If a winding up order is made then it is highly unlikely that a debt will ever be paid.

• therefore a sensible negotiated instalment settlement of a winding up petition debt if often the right way to go;
• at Francis Wilks & Jones, we have great experience of doing this and if needed, getting the winding up petition adjourned (delayed to a later date) at the winding up order court hearing to enable pressure to be kept on a debtor to make the agreed payments.

We can also advise on the tricky questions of whether to withdraw the petition prior to the winding up petition hearing when only some of the debt and legal costs still remains outstanding. There are important considerations to take into account in such circumstances.

How we can help debtors

From a debtor’s perspective, we can help negotiate that realistic instalment plan to pay off the winding up order debt. We can assist in this part of the winding up petition process and often it requires provision of some financial evidence to the petitioning creditor to persuade them to enter into a repayment proposal.

Whatever your situation, the winding up petition team at Francis Wilks & Jones can assist.

The issue of legal costs in a winding up petition very much depends on the outcome of the process – such as if the petition was disputed, dismissed by consent or the company wound up. Our expert team has dealt with thousands of petitions since 2002. We can advise you on the subject of legal costs and much more.

How costs are normally dealt with

The court has a discretion to make whatever costs order it feels fit in any particular case, including in winding up proceedings.

However, the normal costs orders the court would make in winding up petition cases are as follows

• If a winding up order is made, then the court would normally order that the petitioning creditor is awarded their costs out of any assets of the company which the liquidator subsequently collects. This is known as the “usual compulsory order”;
• If a petition is dismissed because the creditor has failed to comply with the various procedural requirements set out in the Insolvency Rules, then they petitioning creditor is unlikely to recover its costs;
• If a petition is dismissed because a debtor has paid the debt due under the petition, then as long as the petition has been advertised, the petitioner is usually able to recover its costs. In practice, the petitioning creditor will normally insist that its costs are paid by the debtor company before agreeing to dismiss or withdraw the winding up petition;
• If the winding up petition fails, then the petitioning creditor will normally be ordered to pay the company’s costs.

If the parties cannot agree costs among themselves, then they can go to detailed assessment. The court do not generally have time to deal with costs as part of the winding up petition list, so issues in relation to costs will be dealt with at separate hearings.

The FWJ approach can mean the debtor pays all the legal costs

Winding up petition court fees and costs are often misunderstood and much of the original court fee can be recovered after the end of a case. Our expert team can help advise.

There are two sets of costs you will incur when instructing law firms to collect debts – their own time costs and “disbursements” such as court fees. However, we are different in many ways.

How we are different to other law firms – over 50% of our clients end up paying nothing at all in legal fees – this is because where we issue a winding up petition for a client, we often recover the winding up petition debt and legal costs in full from the debtor.

This means that the debtor is actually paying all the legal costs – with the net effect that in over 50% of our cases the client pays nothing at all!

Our FWJ time costs

We operate a highly competitive costing offering to our clients which we do not believe any other law firms offer. If you wish to learn more about our costs then please follow this link on our website for our full debt recovery pricing model – including winding up petitions.

Disbursements

In addition to our time costs, there are “set” fees which also need to be paid as part of the process.

These consist of:-

• the winding up court issue fee – £302.
• The official receivers deposit – £2,600 (of which £2,550 is the refundable official receivers deposit if the debtor is not wound up).
• process server fee £100- £150 (approx).
• advertisement fee in the London Gazette (if required) – £80.
• barrister’s costs for attending court (if required) – £150 – £200 plus VAT (approx).

 Court fees do change from time to time so you can keep up to speed with them at the government court fee website.

Understanding more about the court fee and official receiver deposit

With regard to the winding up court issue fee this is £302.

However, you also have to pay what is known as the Official Receivers liquidation deposit to get a petition issued. That is £2,600. However, it is important to understand that if the debtor is not later wound up (for example the debtor pays up or is clearly insolvent and you don’t want to wind them up) you will receive back from the court £2,550 of the original £2,600 deposit. 

Therefore, the net cost of the court fee for issuing a winding up petition if a company is ultimately not wound-up in terms of the court fee is much lower – £302 + £50.

• the reason for the official receiver deposit is that if the company is wound up, the money can be used by the official receiver (the government appointment liquidator) to undertake investigations into the liquidated company and those involved in the management of it.
• If the company is not wound up – it is handed back to the creditor who issued the petition.

However, it must always be remembered that the purpose of a winding up petition is for a creditor is to try and obtain payment of the winding up petition debt.  It is the threat of the winding up petition rather than the actual winding up of the company which results in payment. 

• We would not always recommend that a company is wound up if it is clear the debt is not going to be paid.
• By not winding up the company, you would receive back the deposit of £2,550 thus reducing your costs greatly.

It normally can take a few weeks to for the winding up petition deposit to be returned to the petitioning creditor or their solicitors, but if the delay is lengthy, you can contact the estate accounts and scanning team of the insolvency service to try and speed up the process.

The deposit fee paid to the official receiver has changed over the years (the last rise meaning it is now £2,600)

As such, it is worth checking what the current deposit is before issuing any winding up petition as the liquidation deposits do rise.

The rules relating to the winding up petition deposit and costs is set out in Article 2 of the Insolvency Proceedings (Fees) order (SI 2016/692).

Whether you are a creditor issuing the petition or a debtor on the receiving end of a winding up order – there are times when both sides will need more time to resolve their differences and try and sort the petition out. Our team can help you get extensions of time at court if needed.

Adjournment – the legal phrase for “requesting more time”

If a winding up petition has been served on a company, the clock starts ticking immediately.

According to the CPR 6.4(1), the winding-up petition must be served on the debtor company not less than seven business days before the date of the hearing. This means that the company must receive the winding-up petition at least one week before the scheduled court hearing.

If the winding up petition is not responded to, it can be advertised in the London Gazette just 7 days business days after the dated of service. If that happens it would very likely spell the end of the company’s ability to trade and lead to its liquidation.

The need for an adjournment (delay) of a winding up order

There are a number of reasons why an adjournment of the petition beyond the initial court date might be needed

• Often, a debtor company needs time in order to organise its affairs and arrange for a payment of the winding up petition debt. For example, it might want to offer a negotiated instalment settlement.  If however, the court hearing date is getting near, the petitioning creditor might want to extend that date to allow more time for a solution to be found.
• No response from the debtor. If this happens, sometimes the creditor might not have done what is needed for the petition to be wound up at the first hearing date. So a delay is needed.
• Procedural irregularities. Sometimes there might be an issue with the documents and an adjournment is required
• Court inefficiencies. Sometimes the court will lose papers or not have things ready – so an order cannot be made.

All these will mean attending court and asking for more time. At Francis Wilks & Jones, we are able to arrange for a barrister to attend the winding up petition court and seek an adjournment of the winding up petition court hearing date. This will allow all the parties to the case more time to sort things out and settle the winding up petition debt.

Do both sides need to agree to an adjournment before one is granted?

On most occasions adjournments are dealt with by consent (ie both sides agree in advance) and therefore the winding up court hearing for the adjournment is relatively straight forward. 

However in some circumstances, particularly with winding up petitions by HMRC, the petitioning creditor can take a harder line and in these cases, we can help prepare the necessary written evidence in advance of the court hearing to help persuade the court that further time should be given to allow the debtor company to try and organise payment of the debt and continue trading. 

How the team at FWJ can help

Our experience. We have obtained adjournments 100’s of times. We know the relevant laws and procedures related to adjournments.

Proper presentation of grounds. We can make sure the judge is given the right evidence to allow the adjournment. We do so in a clear and persuasive manner, ensuring that the court understands the reasons for seeking the postponement.

Representation at the hearing. If the request for an adjournment is opposed by the other party, we can represent you to ensure we get the adjournment you need.

Purpose of advertising in the London Gazette

The main purpose of advertising the winding-up petition in the London Gazette is to provide public notice of the petition. This notice serves as a formal announcement to the public and other interested parties, including other creditors and banks, that a winding-up petition has been presented against the debtor company. The advertisement helps ensure transparency and allows any interested parties to be aware of the company’s financial situation and the potential winding-up proceedings.

It is also a requirement if you ultimately want to wind up the company at court.

Timing of the Advert

If the winding up petition debt remains unpaid or undisputed, then after 7 business days has elapsed from the date of service, the petitioner can advertise the winding up petition in the London Gazette. 

What is the London Gazette?

The London Gazette is a trade magazine which publishes many different types of company and individual notices such as

• bankruptcy petition notices;
• company voluntary arrangements notices;
• corporate insolvency notices; and
• winding up petition notices. 

The London Gazette is one of the most important journal records published in the country and one which contains certain statutory notices. It is the oldest surviving English newspaper and was first published on 7 November 1665.

The London Gazette is both a hard copy and on-line publication. In terms of insolvency related matters, different parties can advertise different types of corporate insolvency notices in the Gazette. This is done for a variety of reasons but in terms of a winding up petition it is due to the requirement that in order to obtain a winding up order, the winding up petition notice must first be advertised in the London Gazette.

The reason for placing an advert notice in the London Gazette is to allow other company creditors to be made aware of the existence of the winding up petition.  Those creditors may then support the winding up petition with their own debt by sending what is called a notice of support.

Without advertising the winding up petition properly in the London Gazette it is not possible to wind up a company.  The court simply won’t grant a winding up order.

Importance of getting the advertisement right

This process is also important to get right for various reasons.

• a wrongly drafted advert can have very serious consequences as the petition, once in the London Gazette becomes public knowledge and will be picked up by credit reference agencies, banks and trade suppliers;
• any mistakes in the advert could have important ramifications;
• wrongly advertising the winding up petition can have drastic consequences and hold the petitioner open to a claim in damages.

Timing of the Advert

The advertisement of a notice in the London Gazette must be published within a specified timeframe after the petition is issued. This timeframe is governed by Rule 7.16 of the Insolvency (England and Wales) Rules 2016.

Consequences of Advertisement

Advertisement of a winding up petition in the London Gazette can be very serious for a company. It is best avoided at all costs. Our team can help you achieve this. But even if the petition is advertised, there are still things which can be done to help.

A notice of a winding up order in the Gazette can be bad news for a company.

• But if this happens to you, we can still assist and help you avoid the worst consequences.
• Contact us as a matter of urgency and we can still try and have the petition reversed or negotiate a settlement of the claim.
• You might also want to apply for a validation order to help you continue to trade whilst the petition debt is sorted out. This will also minimise the risk of personal claims against you by the liquidator or director disqualification proceedings later on if the company is still wound up.

Unadvertised winding up petitions

An unadvertised winding up petition is one which hasnt formally been advertised in the London Gazette. However, as soon as petitions are issued at the High Court there is a danger that they might become public knowledge through other means – so it is vital to take quick action to prevent serious damage to a business. We can help.

Until a winding up petition has been advertised in the London Gazette, the winding up petition is deemed “unadvertised”. Whilst it is still possible that it may come public knowledge through other means (for example there are credit reference agencies that go down to court and leaf through the public records) an unadvertised winding up petition is one which is not formally advertised in the London Gazette.

The Rules in Full for advertising

The relevant section of the Insolvency Rules relating to winding up advertisement are set out in Insolvency Rule Rule 7.10

1. Unless the court otherwise directs, the petitioner must give notice of the petition.

2. The notice must state—

(a) that a petition has been presented for the winding up of the company;

(b) in the case of an overseas company, the address at which service of the petition was effected;

(c) the name and address of the petitioner;

(d) the date on which the petition was presented;

(e) the venue fixed for the hearing of the petition;

(f) the name and address of the petitioner’s solicitor (if any); and

(g) that any person intending to appear at the hearing (whether to support or oppose the petition) must give notice of that intention in accordance with rule 7.14.

3. The notice must be gazetted

4. The notice must be made to appear—

(a)  if the petitioner is the company itself, not less than seven business days before the day appointed for the hearing; and

(b)  otherwise, not less than seven business days after service of the petition on the company, nor less than seven business days before the day appointed for the hearing.

5. The court may dismiss the petition if notice of it is not given in accordance with this rule.

Other types of corporate notice in the London Gazette

Other types of London Gazette notices which can be advertised in respect of corporate insolvency include

• administration notices;
• company voluntary liquidation notices;
• insolvency practitioner applications;
• notices relating to liquidation by the court;
• members voluntary liquidations;
• moratoria;
• notice of dividends;
• other corporate insolvency notices;
• notices relating to territories and cross-border insolvencies;
• notices relating to reuse of prohibited names; and
• receivership notices.

Other types of personal notice

In respect of personal insolvency, the London Gazette can be used for the different types of personal notices including

• administration orders;
• amendment of title proceedings;
• annulment or rescission;
• appointment and release of trustees;
• bankruptcy orders;
• discharge from bankruptcy;
• final meetings;
• meeting of creditors;
• notices of dividends;
• notices to creditors;
• public examinations;
• recall of sequestrations;
• statutory demands;
• substitution service of petitions; and
• trust deeds

It is important that the adverts if placed in the London Gazette are done properly. At Francis Wilks & Jones we can help you with this process.

If a creditor wants to issue a winding up petition but there is already one in existence – it cannot issue its own petition as you can only ever have one petition in existence at any one time.

However – it can serve a “notice of support” on the petition creditor to register its interest and support the existing winding up petition – and help protect its position.

It can have dramatic consequences on the process and is something which must be handled carefully. Our expert team is here to help.

What is a notice of intention to appear?

The supporting notice, also known as the notice of intention to appear, is a formal document which sets out the basic details of another creditor’s claim against the company which has a winding up order against it already. The winding up notice is a way of formally registering interest and support the existing winding up petition (or opposing it).

• once the document has been sent to the petitioner (or their solicitors) it gives the supporting (or opposing) creditor the opportunity to be heard by the court at the subsequent winding up petition hearing;
• the winding up notice of intention to appear has to be filed by 4 pm on the working day prior to the hearing of the winding up petition;
• once received by the petitioning creditor (or their solicitors) they are obliged to file a list of appearances to court prior to the hearing, confirming to the court whether they have heard from any other creditors of the company an confirming whether those creditor either support or oppose the petition;
• this then gives those creditors who have given notice the right of appearance at the hearing of the winding up petition.

At Francis Wilks & Jones, we can assist you with any issues arising from a winding up notice, or notice of intention to appear. That could be how to draft and serve one, or how to deal with receiving one. And ensuring that you have a right to be heard at any subsequent winding up petition hearing.

Can a supporting creditor take over the existing petition?

It is possible for a company creditor to take over conduct of an existing winding up petition. This can have significant implications for the existing petitioner or the debtor. Whatever your situation – we have the team to help you through this process.

If a creditor wants to take over conduct of an existing winding up petition, it must support the original winding up petition by serving a notice of intention to appear in the requisite format set out in the COMP 6.

• a notice of intention to support the petition must be sent to the original petitioning creditor by 4.00pm on the last business day before the hearing of the winding up petition;
• if proper notice has not been given to support the winding up petition, then the creditor cannot appear at the winding up hearing unless the court gives sanction.
• at the hearing, you will need representation and request to the judge that an order be made substituting the creditor for the original petitioning creditor;
• the debtor company can object to the creditor being substituted on the winding up petition and make arguments at court at the time of the substitution application. It should not leave it until afterwards because substitution will then have taken place;
• the court will normally give an order that the substituted creditor must amend, re-verify reserve and advertise the winding up petition within 42 days.

At Francis Wilks & Jones we can assist you with this process and have excellent links to barrister who can attend court at a moment’s notice or deal with virtual hearings and assist in taking over the winding up order.

Substitution of creditor or contributory for petitioner – the court rules

Rule 7.17 of the Insolvency Rules

(1) This rule applies where the petitioner—a. is subsequently found not to have been entitled to present the petition;

b) fails to give notice of the petition in accordance with rule 7.10;

c) consents to withdraw the petition, or to allow it to be dismissed, consents to an adjournment, or fails to appear in support of the petition when it is called on in court on the day originally fixed for the hearing, or on a day to which it is adjourned; or

d) appears, but does not apply for an order in the terms requested in the petition.

(2) The court may, on such terms as it thinks just, substitute as petitioner—

a). a creditor or contributory who in its opinion would have a right to present a petition and who wishes to prosecute it; or

b). a member State liquidator who has been appointed in main proceedings in relation to the company, and who wishes to prosecute the petition

Rule 7.18.  

An order for substitution of a petitioner must contain—

• (a)  identification details for the proceedings;
• (b)  the name of the original petitioner;
• (c)  the name of the creditor, contributory or member State liquidator (“the named person”) who is substituted as petitioner;
• (d)  a statement that the named person has requested to be substituted as petitioner under rule 7.17;
• (e)  the following orders—
  • (i) either—
    •    (aa) that the named person must pay the statutory deposit to the court and that, upon such payment being made, the statutory deposit paid by the original petitioner is to be repaid to the original petitioner by the official receiver, or
    •    (bb) where the named person is the subject of a notice to the court by the Secretary of State under rule 7.7(2)(b) (notice of alternative arrangements for the payment of deposit) that the statutory deposit paid by the original petitioner is to be repaid to the original petitioner by the official receiver;
  • (ii) that the named person be substituted as petitioner in place of the original petitioner and that the named person may amend the petition accordingly,
  • (iii) that the named person must within a period specified in the order file a statement of truth of the statements in the amended petition,
  • (iv) that not later than before the adjourned hearing of the petition, by a date specified in the order, the named person must serve a sealed copy of the amended petition on the company and deliver a copy to any other person to whom the original petition was delivered,
  • (v) that the hearing of the amended petition be adjourned to the venue specified in the order, and
  • (vi) that the question of the costs of the original petitioner and of the statutory deposit (if appropriate) be reserved until the final determination of the amended petition;
• (f) the venue of the adjourned hearing; and
• (g) the date of the order

Our expert team of winding up petition solicitors at Francis Wilks & Jones are here to help you with any type of petition enquiry or question including taking over an existing winding up petition. Contact one of our team of expert friendly winding up petition lawyers now for your confidential winding up petition consultation. Let us help.

A number of different things can happen at a winding up petition court hearing – from a formal winding up order to a dismissal or adjournment. Our team can provide all the help you need, whether you are a creditor or debtor. Call us today.

The initial court hearing date

When a winding up petition is issued, the court will always insert in the winding up petition itself what is commonly known as a “return date”.  That is a date usually set 8-10 weeks in the future and at which the creditor and the debtor can attend court (either in person or online).

What happens at the winding up petition hearing?

The purpose of attending on the winding up court hearing return date can be varied but usually it covers the following:

1. The petitioning creditor can ask that the company be wound up.

 In order to obtain a winding up order, the petitioning creditor will firstly have to demonstrate to the court that all the requirements of the winding up petition process have been met. These include demonstrating proper service of the winding up petition, advertisement of the winding up petition in the London Gazette, filing of the certificate of compliance, certificate of supporting creditors and certificate of continuing debt.

2. The petitioning creditor may seek an adjournment (a delay) of the winding up petition.  

That may occur if the petitioning creditor (or its lawyers) is in negotiations with the debtor over payment and the debtor requires more time to pay the winding up petition debt.  In those circumstances, the court will ordinarily grant one adjournment of the winding up petition, but unless there are exceptional circumstances, it will not grant more than one adjournment of the winding up petition. 

Therefore, careful thought needs to be given as to the length of time that you are seeking by way of an adjournment of the winding up petition as you only get one chance of doing this.
 

3. A petitioning creditor may ask for the winding up petition to be dismissed. 

The petitioning creditor will usually do this in circumstances where the winding up petition debt has been paid and it is keen to ensure that the winding up petition is dismissed from court and no supporting creditors are in attendance at court.

• The winding up petition court hearings themselves are very interesting.  The court room is packed with many barristers attending on behalf of all of the different petitioning creditors. 
• All winding up petitions are listed in approximately 3-4 hours and it is very important that someone with experience attends the winding up petition court if they want to make representations to the judge.

This is because the judge has to get through over 100 winding up petitions in a very short time frame and if you miss your slot, the winding up petition is dismissed and you have to start the entire winding up petition process all over again.

Hearing of petition – Rule 7.31 of the Insolvency (England and Wales) Rules 2016

1.  On the return day, or at any time after it, the court—

 (a) must, where the petition is presented by a person who is not a relevant office-holder, give directions;

 (b) may, in any other case, give directions; or

 (c) may, in either case, make any such order as it sees fit.

2. In particular, the court may give directions relating to the following matters—

 (a) service or delivery of the petition, whether in connection with the venue for a further hearing, or for any other purpose;

 (b) whether particulars of claim and defence are to be delivered, and generally as to the procedure on the petition;

 (c) whether and if so by what means, notice of the petition is to be given;

 (d) the manner in which any evidence is to be provided at any hearing before the judge and in particular (but without prejudice to the generality of the above) as to—

   (i) the taking of evidence wholly or in part by witness statement or orally,

   (ii) the cross-examination of any person who has made a witness statement, and

   (iii) the matters to be dealt with in evidence; and

 (e) any other matter affecting the procedure on the petition or in connection with the hearing and disposal of the petition.

3. In giving directions the court must consider whether a copy of the petition should be served on or delivered to any of the persons specified in rule 7.9.

Documents to be filed at court in advance of a hearing to wind up the company

There are a number of documents which have to be prepared and filed at court if a winding up order is to be granted. These include the certificate of compliance, notice of appearances and other key documents. And it is crucial to file them on time and avoid the petition being dismissed. Our experts can help.

1. Certificate of compliance

What is a certificate of compliance and what does it show?

The Certificate of Compliance is a document which confirms to the court that the winding up petition has been correctly issued, been duly served and properly advertised in the London Gazette within the time frames which are set out in the Insolvency (England and Wales) Rules 2016.

2. How is a certificate of compliance filed?

The Certificate of Compliance is nowadays filed electronically at court and includes a copy of the advertisement in the London Gazette.

3. What are the rules relating to time for filing?

A Certificate of Compliance must be filed at least five working days prior to the hearing of the winding up petition. If the petitioning creditor (or their solicitor) fails to comply with this time limit, they risk having the winding up petition hearing adjourned, or dismissed for not complying with the Insolvency (England and Wales) Rules 2016.

2. List of appearances

What is a list of appearances for?

The petitioning creditor (or their solicitors) must provide the court, in advance of the winding up petition hearing of the list of creditors who have contacted them regarding the winding up petition.

When must the list of appearances be filed at court?

As creditors have until 4 p.m. on the working day before the winding up petition hearing to notify the petitioning creditor of their claim, the petitioning creditor (or their solicitors) must file at court a list of those creditors who have contacted them after 4 p.m. on the working day before the winding up petition hearing.

This is done by filing a list of appearances COMP 5 with the court.

What if no other party has supported the winding up petition?

Even if no other creditors contact the petitioning creditor (or their solicitors) regarding the winding up petition, the petitioning creditor still needs to inform the court of those people who have a right to be heard at the subsequent hearing. This often means that blank list of appearances are filed at court.

Failure to file a list of appearances can mean that your petition hearing is adjourned or dismissed for non-compliance with the Insolvency (England and Wales) Rules 2016.

The winding up petition court list

The list of winding up petitions is a formal companies list at court of all petitions heard that week. Our team are experts in all petition related matters.

• The list of winding up petitions heard by one of the court registrars on a Wednesday morning is normally fairly extensive, with usually anywhere between 100 to 250 winding up petition cases being listed on any one list.

• The hearings normally commence at around 10.30 in the morning and can last through to early afternoon. However, as a result of the winding up petition list being extremely busy, this means that the Registrar gets very little time to deal with each case.

Accordingly, if representatives of both the petitioning creditor and the debtor company turn up to argue whether the winding up petition should be granted or not, the registrar may decide that there is insufficient time to deal with the case as part of the winding up petition list and will adjourn / delay it for a longer more substantive hearing at a future date.

Winding up petitions can be dismissed for a variety of reasons – the debt might be paid, it might be subject to a genuine dispute or there might be a counterclaim by the debtor against the petitioner. Our team deals with these types of situations very regularly – for both petitioners and companies on the receiving end. Whatever your position – it is vital to take the right action. Let us help.

Reasons to dismiss a petition

A winding up petition can always be dismissed from court prior to the winding up petition court date.

There are various reasons why a winding up petition dismissal is the sensible course of action to take

• if the winding up petition debt has been paid, it will stop the petition being supported by another creditor of the company. This can lead to a loss of control and ultimately the creditor might have to pay back any money received if the company is later wound up;
• it removes the petition from the public record – which will very much help the debtor company as petitions are viewed as very negative things;
• it can help unfreeze a company bank account;
• it reduces personal liability for the directors of the debtor company.

How to dismiss a winding up petition

The procedure itself is set out in the insolvency rules.

• a formal application needs to be made online to the court with the correct court fee.
• there also is a requirement for a petitioner to deal with the position of the legal costs and these need to be set out clearly to the court and a letter received from the debtor company with the appropriate wording.

At Francis Wilks & Jones we can help you through this technical process and with access to the courts just down the road, is something we can do effectively and quickly.

Equally, we often provide companies served with winding up petitions advice on how best to have the winding up petition dismissed from court. We are very familiar with all aspects of the winding up order process including winding up order dismissal.

What steps to take if you are the creditor / petitioner

If you are a petitioner (i.e. the person or company who has issued the winding up order) you can arrange for the winding up petition to be withdrawn prior to the actual winding up petition hearing date. Normally this would happen when the winding up petition debt has been paid by the debtor.

In order to have the winding up petition withdrawn

• a formal application needs to be made on-line to the court; and
• the court needs to have confirmation from the debtor company that the issue of legal costs has also been dealt with.

It is important if you have been paid the winding up petition debt to ensure that the winding up petition is withdrawn as soon as possible. This will stop another creditor “supporting” the winding up order. This can then stop you from an early withdrawal of the winding up order. Ultimately, if the supporting creditor then winds the company up, any money you received after the winding up petition was issued will have to be paid back to the liquidator.

Winding up petition withdrawal therefore is an important aspect that always needs to be considered.

What steps to take if you are the debtor

If you have received a winding up notice, then it is clearly very important to have the winding up petition withdrawn if at all possible.

Normally, the person or company who has issued the winding up order against you will only agree to it being withdrawn if the debt is paid. Or if it can be shown that it is subject to a genuine and substantial dispute.

If you are faced with this situation as a recipient of a winding up order, then you can contact us and we can advise you the best way to ensure that the winding up petition is withdrawn. There are always options available, such as

• negotiating a payment plan;
• seeking external finance;
• speaking to a restructuring expert;
• disputing the underlying debt.

It can be vital to get a winding up petition dismissed from court. If you are a creditor and have been paid, you don’t want the petition supported by someone else as you might have to hand the money back. As a debtor, removal of the petition can stop a bank account being frozen and prevent huge reputational damage.

It is possible to withdraw a winding up petition from the court record in the event that the winding up petition debt is paid in advance of the winding up petition court hearing. This is always our aim.

• it is often very sensible to get a petition dismissed as soon as possible as it safeguards any money paid to creditor after the winding up petition has been issued;
• it helps avoids the unfortunate position of the winding up petition being supported by another creditor of the debtor and being taken over by that creditor who in turn winds up the company;
• if this happens, any money paid to the original petitioning creditor has to be paid back to the liquidator of the company as it is deemed a preferential payment.

At Francis Wilks & Jones we can help draft the application to withdraw the winding up petition and have the winding up petition dismissed from court within 24 hours of payment being received.

We can also assist a recipient of a winding up petition to have a winding up petition dismissed from court in circumstances where the debt is disputed or the winding up petition is an abuse of process.

How close to the court hearing can the petition be withdrawn?

So long as the hearing is less than 7 business days away, it is possible to withdraw the winding up petition prior to the first hearing date.

• this is done by a winding up petition withdrawal application and is something we can assist any company with;
• normally it is following payment or settlement of a debt or an agreement to pay a debt and the consent of the petitioner is needed in order to secure the winding up petition withdrawal.

How to withdraw a petition prior to the court hearing

The winding up petition withdrawal application is relatively straightforward. However, we would advise you have legal assistance to help you through the withdrawal process. The application needs to be carefully drafted and there is a court fee also required for the application. It also needs to be filed using the court online portal.

• timings are an issue as it cannot be done too close to the first hearing of the winding up petition in open court;
• if a winding up petition has already been heard in court then it is not possible to withdraw it at any time other than at the next listed court hearing date.

The Court Rules in full

Rule 7.13 of the Insolvency (England and Wales) Rules 2016 which deals with the withdrawal of a winding up petition is set out below

Permission for the petitioner to withdraw – the court rules

(1) The court may order that the petitioner has permission to withdraw the petition on such terms as to costs as the parties may agree if at least five business days before the first hearing the petitioner, on an application without notice to any other party, satisfies the court that—

(a) notice of the petition has not been given under rule 7.10;

(b) no notices in support or in opposition to the petition have been received by the petitioner; and

(c) the company consents to an order being made under this rule.

(2) The order must contain—

(a) identification details for the company;

(b) the date the winding-up petition was presented;

(c) the name and postal address of the applicant;

(d) a statement that upon the application made without notice to any other party by the applicant named in the order the court is satisfied that notice of the petition has not been given, that no notices in support of or in opposition to the petition have been received by the petitioner and that the company consents to this order; and

(e) an order that, with the permission of the court, the petition is withdrawn.

Our expert team of winding up petition solicitors at Francis Wilks & Jones are here to help you with your winding up petition questions. Our knowledge of winding up orders is second to none having dealt with thousands of such situations over the years. Our practical daily experience and legal expertise means that we can assist whatever the nature of your winding up petition claim.

HMRC winding up process

A winding up order for non payment of taxes can be frightening. But there are always things which can be done – negotiated settlements, company restructuring, disputing the claim, seeking business funding or applying for a validation order as just some of the choices. Let our experts help.

HMRC winding up process is crucial to understand.

HMRC issue hundreds of winding up petitions a year and have their own barristers and in-house legal team dealing with all of the winding up petitions. To an extent they are a very well oiled machine and it is always better for a company who has received an HMRC winding up petition to take expert legal advice to deal with HMRC. Otherwise, with their knowledge of the winding up process, you can easily come unstuck.

• at Francis Wilks & Jones we have a team of experts who have many years of experience dealing with HMRC and understand the HMRC winding up process;
• one of our consultants, Andy Lynch, formerly spent 18 years at HMRC before joining our law firm. His knowledge of the inner workings of HMRC are also very useful when dealing with the different departments there;
• knowledge of the HMRC winding up process can dramatically assist your chances of success and our team at Francis Wilks & Jones have the expertise to help you through what can often be a frightening experience;
• we can help make a validation order application to help you to continue trading without risk of personal claims against the directors.

The winding up process and procedure is not always easy to understand and if you start making mistakes, it can inadvertently lead to a winding up order being made and your company being placed into formal liquidation. If at all possible, you need to avoid these dramatic consequences of an HMRC winding up petition.

What to do if you receive a HMRC Winding up petition

A winding up order for non payment of taxes can be frightening.

But there are always things which can be done

• negotiated settlements,
• company turnaround & restructuring,
• setting out a dispute to the claim,
• seeking business funding or
• applying for a validation order to get court agreement to keep the company trading.
• Let our experts help.

When faced with an HMRC winding up order, you should take immediate steps to alleviate the worst of the damage.

A winding up petition can quickly result in a company’s bank accounts being frozen and seriously affecting its ability to trade, take on credit and can result in suppliers demanding to be paid cash on delivery. A winding up order can also lead to significant adverse publicity.

Therefore, if you receive an HMRC winding up order, the key is to

• take immediate legal advice to work out whether the debt is due and if so, whether you can pay it. At Francis Wilks & Jones we have in-house experts including Andy Lynch who worked at HMRC for 18 years. We have the ability firstly to review the claim for the debt and work out if it is all genuinely due. On occasions, HMRC do get the wrong amounts in an HMRC winding up order.
• once that process has been completed, the key is try and negotiate repayments with the HMRC, particularly if your company has difficulty in paying the HMRC winding up petition in one go. The HMRC can be difficult to deal with but we have the experience of negotiating repayment plans with HRMC to avoid the worst of a winding up order being made.

It is important to understand that 7 working days after the service of the HMRC winding up order, the petition can be advertised in the London Gazette. If the winding up order is advertised in the London Gazette, this is when it becomes public knowledge and can hugely damage your company. It is difficult to know whether in any particular instance the HMRC will advertise the winding up petition but it is always a danger and one worth trying to avoid.

On occasion, the debt simply doesn’t add up and in those circumstances, you may consider an injunction to prevent the advertisement of the winding up petition. We have those experts in-house who can help prepare the injunction papers to prevent a winding up order being made.

The importance is to take quick action if you receive an HMRC winding up order. Not dealing with it can lead to very drastic consequences.

How to defend an HMRC petition

It is vital to take expert legal advice if you want to defend an HMRC winding up petition. Get is wrong – and your business will disappear and directors could be open to personal claims by the liquidator. Our brilliant team can help make sure you maximise your prospects of success and avoid mistakes.

“How to defend an HMRC winding up petition” is a common question for our firm.

We have dealt with many HMRC winding up petitions over the years and successfully helped many companies avoid the worst effects of an HMRC winding up order. As with all winding up petitions, defending them depends upon the circumstances of your case but your options could include the following:

• If the entire HMRC debt is disputed, you can apply for an interim injunction at court to restrain or stop the HMRC advertising the winding up petition. This will avoid it becoming public knowledge in the London Gazette and is critical if you are disputing the debt. If we set out the position clearly to HMRC prior to an injunction application, we can sometimes obtain an undertaking from them not to advertise the petition while the matter is considered further.
• If part of the debt is disputed, and you are able to pay the undisputed element, we can help you through that process. The undisputed winding up petition debt should then be paid and our expert team can then seek dismissal of the petition from court.
• If it is time you need in order to pay the debt, then we can help you with negotiating an instalment plan with the HMRC. This is not always easy to do but we have the experience to help you through this difficult process. The key is to take urgent action.
• If it is time you need but need to continue trading then we can also help you obtain a validation order to legally continue to trade whilst you deal with the worst effects of the winding up petition.

The key is to deal with the winding up petition quickly as soon as you receive it. At Francis Wilks & Jones we have the winding up order experts to help you in this process and are well versed in all winding up order issues including how to defend an HMRC winding up petition.

Negotiating an HMRC petition

It is possible to defend an HMRC winding up petition, but only with expert legal help. HMRC are well known for taking a tough approach with companies which owe them money. But our team of lawyers supported by an ex HMRC expert of 18 years can help you keep trading. We often negotiate settlements for companies and resolve the petition by consent.

Negotiated settlements of HMRC winding up petitions can be difficult. HMRC often take a hard line on repayment of outstanding HMRC debts including National Insurance, PAYE, VAT and other types of debt.

We have many years of experience negotiating repayment plans with HMRC and understand the way in which they work. Simply put, you need to have a coherent and believable repayment plan if you are to avoid the worst effects of HMRC winding up orders. HMRC take the attitude that this is money due to the public purse and as such, do take a hard line on getting repaid. Having said that, they do take a sensible approach with regard to repayment of debts but the key is ensuring that you can prove that this debt will be repaid.

• we can help you through the winding up petition procedure and negotiations with HMRC;
• our aim always is to avoid the worst effect of a winding up petition against a company;
• our aim is to avoid you being at risk of personal claims and director disqualification;
• we can try and obtain a validation order if needed – so you can continue to trade without personal risk whilst the winding up petition is resolved.

Once the petition debt has been paid or settled – it is vital to get the petition dismissed from court. This stops it being supported by other creditors and avoid the company getting wound up by someone else. Our team can help with this vital process.

Is the debt disputed or has it been paid in full?

When people approach us and ask “can an HMRC winding up petition be withdrawn”, the first thing to do is for us to check whether the outstanding debt is any way disputed and if not, has the winding up petition debt been paid in full.

• if the petition debt has been paid in full then often, the next step is to deal with the petitioner’s legal costs which they will also want paying as part of having to go through the winding up order process. There are costs of issuing a winding up order and commonly, the petitioner will want these costs paid before it will agree to the winding up order being dismissed.
• once the issues of the HMRC’s winding up petition costs have been resolved (we can do this by negotiation with the HMRC) the actual process for withdrawing an HMRC winding up petition is relatively straightforward but one which is crucial to get right. It involves making an application to court and e-filing it through the court’s system.

At Francis Wilks & Jones we are fully linked to the court electronic systems and can arrange for the winding up petition withdrawal application to be made. We can do this swiftly and on the same day and maximise the prospects of the HMRC winding up petition being made. That will then avoid a winding up order being made.

Speed is very important – don’t delay

It is always important to ensure that the winding up petition is withdrawn as quickly as possible after payment of the petitioner’s debt and costs.

• The reason is that other creditors of the company if they find out about the winding up petition can support it formally and this then leads to the company not being able to withdraw the winding up petition without paying that extra debt.
• There is a danger the position can snowball if many creditors start supporting the original petition and that can then ultimately lead to the company being wound up even though the original petition debt was paid.

Therefore, it is important to act quickly and make that application to withdraw the winding up petition to avoid a winding up order being made. At Francis Wilks & Jones we can help you through this process to maximise the prospects of success for your company.

HMRC – general information you should know

It is a statutory requirement that all individuals and companies in the UK account for tax to His Majesty’s Revenue and Customs (“HMRC”) in a timely and accurate fashion.

Introduction

All companies and businesses should ensure they stay in full communication with HMRC throughout their period of trading and existence, ensuring that all tax returns are prepared accurately, filed on time and paid in accordance with the correct tax liability for the company/business.

Common problems if you fail to communicate with HMRC

Problems arise where such levels of communication are not maintained and returns or payments are missed, and following which consecutive occurrences may lead to a pattern of behaviour resulting in one of the following scenarios:

• penalties, surcharges and interest;
• tax investigations;
• company insolvency;
• individual insolvency;
• claims by liquidators or administrators;
• director disqualification claims;
• claims by the registrar of companies;
• claims by HMRC.

Business distress

If your company or business is facing difficulties, then it is important to ensure that you maintain communication with HMRC. When presented with silence, HMRC’s only option of recourse is to issue proceedings, which will usually result in the company being wound-up and/or your personal bankruptcy.

It may be that your business is facing a sticky patch, is searching for funding or is about to secure a new contract, pending which some breathing space is required. Whilst HMRC will not normally provide such breathing space, by keeping them aware of the challenges your business is facing they are less likely to proceed as quickly with enforcement of the outstanding tax liability, and will often work with you to find a repayment strategy (if realistic).

Need to continue filing returns

Even if your business or company is unable to meet tax liabilities, it is important to continue adhering to the statutory duties to file tax returns, particularly PAYE/NIC returns and VAT returns.

• if these returns are not filed, HMRC will then raise statutory assessments of what they think has become due (usually based on recent trading results) which may not be accurate and are often overstated;
• these assessments, whilst they may be overstated, are capable at law of supporting legal proceedings for enforcement of the tax liability, the most common of which is a winding-up or bankruptcy petition.

By continuing to file returns, even where trading is making payment difficult, you are able to mitigate the tax liability or ensure that you or your company are being pursued for the correct sums and this will also assist ongoing negotiations to repay this debt.

Benefits of negotiations

The benefit of negotiating with HMRC are far greater than most companies and businesses truly understand.

A company or business, particularly where represented by an experienced professional, can

• often agree instalment arrangements to pay arrears of tax via a time to pay agreement which is then capable of taking the pressure off whilst the company or business continue to focus on business survival and growth;
• significantly reduce VAT Security amounts sought in the notice of requirement, particularly where a director’s new company is a completely different business or where the trading income is considerably lower;
• assist with accelerated payment notices negotiations and result in much clearer information being presented to HMRC and a considerable reduction in the accelerated payment sought (whilst negotiations are ongoing in respect of the underlying tax liability).

HMRC winding up petition list

If you are concerned your company is on the official companies court winding up petition list – we can help. If a petition has been issued, it is vital to act quickly and avoid the petition being advertised in the London Gazette. Whatever your situation, our team will have dealt with it before.

If you believe an HMRC winding up petition has been issued against you, it is possible to check the winding up petition list to see whether your company’s name is on it. However, this is not always easy as the court systems are not particularly great and as such, Francis Wilks & Jones can help you with the HMRC winding up petition list and also to make sure you are fully prepared for the winding up petition hearing if one is to take place.

• it is important to understand that at court, well over a hundred winding up petitions can be heard in one morning and a very rigorous timetable is set by the court and it has a very clear list in which the petitions are heard.
• this includes the HMRC winding up petitions and if you arrive late or miss the time, then a winding up order can be made even if you intended to turn up to court to argue for one not to be made.
• it is therefore very important that you understand about the HMRC winding up petition list and at Francis Wilks & Jones, we can help you with this.

What is a Public Interest winding up petition?

In the context of the English legal system, a public interest winding-up petition is a specific type of winding-up petition brought by an official government body or a regulatory authority rather than a private creditor.

• It is used when there is a public interest in winding up a company due to its harmful or unlawful activities that affect the public or the economy.
• Public interest winding-up petitions are designed to protect the broader interests of society and prevent companies from engaging in activities that are detrimental to the public.

Our expert team regularly defend public interest winding up petitions and can help get them dismissed from court. If a company has been wound up in the public interest, our team can help defend any director disqualification proceedings which will inevitably follow. Let our team help you avoid the worst consequences of a public interest petition.

On what basis will a court grant a public interest winding up petition?

It will be up to the court to decide whether or not to make a winding up order following the presentation of a winding up petition, and the burden of proof is with the Secretary of State to persuade the court that it is just and equitable for the company to be wound up.

Grounds for a Public Interest Winding-up Petition:

Section 124A of the Insolvency Act 1986 provides the grounds for obtaining a public interest winding-up order at court. These grounds include:

Unlawful trading. The company is engaging in unlawful trading activities or operating in contravention of the law.

Fraudulent trading. The company is carrying out business with the intent to defraud creditors or other stakeholders.

Mismanagement. The company is being mismanaged, and this mismanagement is prejudicial to the interests of its creditors or members.

Public Safety Concerns. The company’s activities pose a risk to public safety or health.

Investor Protection. There is a need to protect investors and the public from financial harm caused by the company’s operations.

So, in order to get the winding up order following the issuing of a public interest winding up petition, the Secretary of State must be able to satisfy the court that

• the public needs to be protected from the company concerned; and
• that, as a result, it is “just and equitable” (ie fair) that it be wound up and a winding up order made.

The Secretary of State does not have to prove or demonstrate that there was criminal or unlawful activity, although if it is possible to show that then the public interest winding up petition will succeed. It also does not matter, in a public interest winding up, if the company concerned is solvent or not.

So the central and important question is whether the company’s conduct is “inherently objectionable” which was established in Re Portfolios of Distinction Limited [2006] EWHC 782 Ch. This will effectively mean that the behaviour of the directors and the company will demonstrate a “lack of commercial probity”.

In terms of what this means, it can usually mean that

• the company is carrying out business that preys on the public; and
• will often induce individual members of the public to participate in a transaction that will have no benefit to them;
• in addition, it can also involve the company being involved in a scheme that will prejudice the public generally.

The majority of petitions that are bought by the Secretary of State tend to target companies that are set up solely to carry out activities that go against the public interest. In those cases, the company may well be unable to either file evidence to contradict the evidence that has been established through extensive investigations by the Insolvency Service or to be able to revise its business model.

It is also true that public policy (which underpins a large section of all work done by the Insolvency Service teams and departments) requires that examples be made of wrongdoing companies on the basis that this will then, when publicised, be held up to provide a deterrent to others.

What is the public interest?

The term – public interest – is of particular importance in certain winding up situations. If a company is acting against “the public interest”, there are grounds for that company to be wound up. Our team can help advise you if you face this situation.

The Secretary of State for Business, Energy and Industrial Strategy has the power to present a winding up petition against a company if they believe that the activities of that company are against the public interest.

“Public Interest” is not defined anywhere and the term has been considered by many academics over the years.

• broadly it could be said to be anything affecting the rights, health, welfare, well-being or finances of the public at large;
• as there is no set definition as to what is the public interest and in cases where winding up petitions are presented in the public interest by the Secretary of State, it will be up to the court to decide if the Secretary of State has provided enough evidence for the court to make a winding up order against that company.

The court has to consider if it is just and equitable in all the circumstances for that company to be wound up as its activities are contrary to the public interest.

Public interest and director disqualification

Overview

Where a company has been wound-up on grounds it has been trading contrary to the public interest then almost certainly the director’s conduct will be investigated once the company has been wound-up.

Before a public interest petition is issued companies investigation, a department within government, will have conducted comprehensive enquiries into the company’s affairs, its management structure, the business model and who is controlling it.

The enquiries by companies investigation and the investigations after the company has been wound-up will together form the basis of any decision to seek director disqualification.

Director disqualification

Director disqualification proceedings are brought to protect the public interest. There is no need for any malicious or fraudulent behaviour on the part of the director, the purpose is to protect the public not punish the director (although this is a consequence).

However, where a company has been wound-up in the public interest, it is almost certainly the case that there will be allegations that the appointed director(s) have committed some negligent or deliberate wrongdoing and may be targeted for director disqualification.

Shadow and de facto directors

Companies house includes a register of the directors who the company state are the appointed directors of the company. These individuals will usually be the ones who are investigated and targeted for disqualification by the Secretary of State.

However, not all directors of a company are listed at companies house (a register which is required to be maintained by directors) and so other third parties may also be targeted for disqualification on the basis that they are either a shadow director or a De Facto director.

Shadow directors

Shadow directors are defined under Section 251 of both the Insolvency Act 1986 and the Companies Act 2006 have identical definitions of a shadow director as follows:

“a person in accordance with whose directions or instructions the directors of the company are accustomed to act.”

• a shadow director cannot be someone who provides advice to directors in a professional capacity;
• however, a shadow director is often easily identifiable, often being an individual who historically ran the company (and may have since been disqualified or have retired) or, which is more concerning, an individual who is accustomed to ensuring directors do what they are told without ever having any such official title.

De facto director

There is no statutory definition of a de facto director, but this is an interpretation which has evolved through company case law referring to an individual who acts as a director, regardless of their title.

The individual may often attend board meetings, execute key contracts with suppliers and act equally to all other appointed directors. They are often very visible to customers, sign off documents as a director and have key roles in the company’s business. They are a director “of fact”, i.e. in all but name.

Defending a director disqualification claim

Defending a director disqualification claim is not straightforward – often the information available is minimal, it requires witnesses to come forward and all of the circumstances referred to happened some time ago.

The added burden of a public interest disqualification claim makes this more difficult, because the company has been wound-up in the public interest, but not impossible.

• where a director has not been involved in the alleged wrongdoings, or was misguided by advisors or third parties, this will not always be sufficient to deal with a disqualification claim;
• this is because the claim is brought to protect the public, and therefore even individuals who passively allowed such conduct are a threat to the public interest (although their misconduct is a matter for dispute in proceedings).

As an alternative, a director does not have to defend a director disqualification claim but can offer a disqualification undertaking. However, this presents the risk that they could then become liable for a compensation order as a result of the undertaking provided.

The Rules in full

The full text of Section 124A of the Insolvency Act 1986 reads as follows:

“124 A Petition for winding up on grounds of public interest.

(1) Where it appears to the Secretary of State from—

(a) any report made or information obtained under Part XIV of the Companies Act 1985 (company investigations, &c.),

(b) any report made by inspectors under—

(i) section 167, 168, 169 or 284 of the Financial Services and Markets Act 2000, or

(ii) where the company is an open-ended investment company (within the meaning of that Act), regulations made as a result of section 262(2)(k) of that Act;

(bb) any information or documents obtained under section 165, 171, 172, 173 or 175 of that Act,

(c) any information obtained under section 2 of the Criminal Justice Act 1987 or section 28 of the Criminal Law (Consolidation) (Scotland) Act 1995 (fraud investigations), or

(d) any information obtained under section 83 of the Companies Act 1989 (powers exercisable for purpose of assisting overseas regulatory authorities),

that it is expedient in the public interest that a company should be wound up, he may present a petition for it to be wound up if the court thinks it just and equitable for it to be so.

(2) This section does not apply if the company is already being wound up by the court

Normally it can take around 8-10 weeks to wind up a company. We can help guide you through the process, whatever side you are on.

There are a number of steps which have to be carried out as part of the normal winding up petition process:-

Making a search of the winding up petition register at court

We undertake a winding up petition search at court to ensure that there is not already a winding up petition in existence. This is because there can only be one petition at any time.

Drafting the Winding up Petition and supporting witness statement

The winding up petition then needs to be drafted with all the relevant information and in addition, we need to draft a supporting witness statement.

Issuing the Winding up petition at court

Once the winding up petition and statement are ready to apply for a winding up petition will need to be issued at the appropriate court.  We always issue out of the Companies court in the High Court of Justice, London. We can do this the same days as instruction as we are very near the court.

Service of the Winding Up petition

After issue of the winding up petition by the court, we can arrange for it to be served by a process server – part of the requirements of the winding up petition serving process

Advertising the winding petition in the London Gazette

If the winding up petition debt remains unpaid or undisputed, then in order to wind the company up, the winding up petition needs to be advertised in the London Gazette.  This can happen as little as 7 business days after the date of service.

Preparation for winding up court hearing.

To wind up a company, certain documents need to be prepared and filed in advance of the hearing. These include the certificate of compliance, a certificate of continuing debt and a copy of the affidavit of service. 

Attendance at the hearing

To wind up a company, you will need representation at the court hearing to seek a winding up order, (although at present all hearings are done virtually due to Covid). The hearing date is usually 8-10 weeks after the date the winding up petition is issued. On occasion a director of the debtor company may attend and try and argue against the winding up order being made. Therefore it is important to have proper legal representation at the hearing.

The importance of understanding key time limits

The following are key winding up petition time limits which either party to a winding up petition should bear in mind:

• winding up petition service. Following the issuing of a winding up petition at court, the petition should be served as reasonably quickly as practicable.
• winding up petition advertisement. A winding up petition advertisement in the London Gazette can only take place 7 business days after the petition has been served. That does not include the day of service. It also does not include weekends. This is a very important date for either party. It is especially important for the defendant as failure to understand this point can lead to the winding up petition advertisement in the London Gazette following which that spells disaster for most companies as it becomes public knowledge.
• if a company is to be wound up, then all supporting documents such as the winding up petition advert, certificate of indebtedness, notice of appearances, winding up notice etc. must be lodged at court 7 working days before the date of the winding up petition hearing. If they are not, then the court will not wind the company up at that hearing and could even lead to winding up petition dismissal.

If you are the creditor / petitioner

If you are the creditor who has issued the winding up order, the following should be taken in to account

• you will receive the sealed winding up petition back from the court ready for service. The winding up petition will show the court date when the matter is back in the winding up petition court, commonly 8-10 weeks after the date of issue (although Covid is slowing matters down);
• you will then need to arrange for service of the winding up order on the registered office of the company. This is normally done by a process server experienced in service of winding up orders;
• Once the winding up order has been served, the debtor will either get in touch to arrange for payment, ask for further time to pay or dispute the debt either partially or entirely. When faced with these choices, the creditor will do a number of different things
  • If the debt is paid then the creditor normally wants to withdraw the winding up petition to safeguard the money it has been paid;
  • If the debt is disputed the creditor needs to work out whether the dispute is a genuine one or whether it only covers part of the outstanding monies or not. The matter can then rapidly become quite complex if the debtor is threatening an injunction to prevent the advertisement of the winding up petition.
• If no response is received from the debtor, the creditor can arrange for the winding up order to be advertised in the London Gazette. The winding up order then becomes public knowledge. In the continuing absence of payment of the debt, the creditor will file certain documents at court in advance of the court hearing. So long as this is done properly, at the hearing, the court will make the appropriate winding up order and the company is placed into liquidation.

If you are the debtor

If you are a debtor who has received a winding up petition, then you should consider the following

• the petition is served at your registered office. Sometimes the registered office is different to the trading address of a company and can be an accountant’s office. It is very important that if your registered office is different to your trading address, then any post which is sent to your registered office is forwarded or notified to you upon receipt. Sometimes we are instructed by companies who have been unaware of the winding up petition and the first they know about it is when it is advertised in the London Gazette;
• as a debtor you then have a series of choices
  • You pay the full debt (or negotiate payment terms);
  • You pay part of the debt and set out reasons why the balance isn’t being paid;
  • You dispute the entire debt and if the petition isn’t withdrawn, seek an urgent court injunction to stop it being advertised in the London Gazette;
  • If you are insolvent or do not believe that you can pay your debts as demanded, then you can simply let the winding up order go through or alternatively we would recommend you take some restructuring or insolvency advice to see if there are other options available to help save the company.

What happens if the winding up order is made by the court?

It is important to understand what happens after a winding up order is granted. This isn’t the end of the matter for the individuals involved as directors or managers of the debtor company. The liquidator will make investigations into the running of the company and this can end up resulting in personal claims against the directors and/or managers.

A winding up petition is a legal claim brought by a creditor of the company (usually) who has not been paid their outstanding debt. They will apply to the court to wind up the company so that the company’s assets can be used to pay creditors.

What happens once a winding up petition is served on me?

If you have received a winding up petition, then this will have already been issued in court by your creditor. The court will have provided a date for the hearing of the winding up petition, which will be detailed in the petition that you received.

• the winding up petition will be advertised in the London Gazette, although this will not happen until at least 7 business days after you have been served with it;
• the advertisement of the winding up petition can have devastating consequences a company including
  • the bank putting a freeze on the company bank account
  • suppliers and customers being on notice that the company may be wound up and therefore not supplying you with goods / services or buying form you.

What can I do?

If you agree that the debt is due then we would strongly advise paying the debt or reaching some sort of settlement as soon as possible after you have received the winding up petition and certainly before the creditor has an opportunity to advertise it in the London Gazette. This gives you 7 days from service.

• if you genuinely dispute the debt, then it is possible to make an application to court to prevent the advertisement of the winding up petition;
• you will have to act fast to do this;
• this would have to be on grounds that the debt is disputed and all evidence that you have that you have already notified to the creditor that this is disputed should be put forward.

If you wish to apply to restrain the advertisement of the petition, then you should take expert legal advice. The evidence must be presented in the best possible light and as quickly as possible. Our team of expert company liquidation lawyers at Francis Wilks & Jones can help.

We can also apply to court for a validation order to help you keep trading whilst you resolve the winding up order. This will lessen the risk of any later personal claims against the directors if the company is wound up.

It is possible to cancel a winding up order and have the petition removed. This is known as rescission and involves a court application. Our team are experts in this field and have made many rescission applications over the years. Call us today for help

“Winding up petition rescind” is a question which can relate to a number of different issues such as:

• how can a debtor remove the winding up petition after the petition debt is paid? It is possible to make an application to withdraw a winding up petition prior to the hearing date if a debt has been paid and the position of legal costs has been resolved. Our team can help you with this process and it is often vital to get the winding up petition removed from the court record as soon as possible so that banks and other creditors do not become aware of it;
   
• a debtor may want to have the petition dismissed because the winding up petition is defective and/or disputed. In these circumstances, you can rescind a winding up petition by sending a detailed letter to the petitioning creditor and/or its solicitors inviting them to have the petition withdrawn. If they refuse, you can apply to court to have the winding up petition dismissed and/or an injunction put in place to restrain advertisement of the winding up petition. Again, our team can assist;
   
• the creditor may wish to have the winding up order cancelled after payment of the debt and/or part payment of the debt. This is because it wants to safeguard its money and avoid the winding up petition being supported by another creditor. If this happens the petitioning creditor loses control of the winding up petition process and the company may still end up being wound up. If this happens, any money paid to the petitioning creditor would have to be paid back into the company in liquidation for distribution to all of the creditors of the company and not just the petitioning creditor.

Whatever the reasons, Francis Wilks & Jones can help you to cancel a winding up order petition and rescission.

The consequences of a winding up petition can be dramatic -both personally and for the company. Our specialist team can help you avoid the worst and make sure you limit and risk. Contact us today for your friendly advice.

The consequences of a winding up petition are varied but listed out below are some of the areas a debtor must take into account when served with a winding up order:

• disposition of company property being void. In layman’s terms, this covers a situation whereby selling of assets, spending of company money, charging assets etc after the date a petition has been presented can be invalidated by the court if the company is later wound up. This is pursuant to Sections 127(1) and 129(3) of the Insolvency Act 1986. Disposition of property after the date of a winding up petition can actually have serious effects on the directors of the company if a winding up order is granted by the winding up petition court. Indeed, a liquidator may seek to recover assets or property from directors by way of separate legal court action once a winding up order is made. There is a way around these difficulties and that is to seek what is known as a Validation order under Section 127 of the Insolvency Act. We can assist on this area.
• the bank may freeze the bank account. Having a bank account frozen is something which commonly happens after the presentation of a winding up order. This is because the bank does not want to be held responsible for monies leaving the bank account after the date the winding up petition was issued. Normally this only happens after winding up order advertisement in the London Gazette but it can happen beforehand if it becomes public knowledge in other ways. It can have a dramatic effect on the ability of a company to then pay its debts.
• damage to commercial reputation. The existence of a winding up petition can have great ramifications for a company and its commercial reputation. If it becomes known to suppliers of the company, they may cease to supply the company or ask for cash on delivery. It may also affect the bank’s ability to raise finance and/or impact greatly on its existing finance facility. Other companies may also seek to recover their debts from the company quicker than they previously have.
• lost management time. Dealing with a winding up petition can involve considerable management time. Whilst there is obviously a cost involved with taking expert legal advice, it can help save valuable management time and allow the directors of a company to concentrate on running the business rather than dealing with an unfamiliar and potentially dangerous area of the law. If you get it wrong, a winding up order could follow and that means the company goes in to liquidation.
• claims against directors by liquidators or administrators. If the company is would up – the former directors can face a range of serious personal claims by liquidators. These can result in having to pay money back to the company – or even director disqualification.

After a winding up order is made, a liquidator is appointed to try and get money back in to the company and also investigate the conduct of the directors – and bring personal claims if appropriate. We act for directors and liquidators and have fantastic skills in this area. Let us help you.

Once the winding up order is granted by a court, then the court appoints an Official Receiver over the company.

If there are very little assets in the company, then the Official Receiver may continue to oversee the case and act in the winding up until the liquidation has completed. However, if there are any assets of note to be collected in the company, it is more likely that the Official Receiver will appoint a liquidator to deal with the liquidation of the company going forward.

• in the case of a compulsory winding up, which is when a winding up petition has been presented to the court and the court has made an order for the winding up of the company, there is an automatic stay (stop) on legal proceedings against the company without the permission of the court.
• this only applies if there has been a compulsory winding up order granted by the court, and not if the company has gone into liquidation using the creditors voluntary liquidation route.

The liquidator

If a liquidator is appointed over the company, that liquidator will collect in all the assets of the company as part of the liquidation process, in order to use these to distribute to creditors and, if there is a surplus, to shareholders.

• the liquidator is a licensed insolvency practitioner who acts as an agent over the company. The directors’ role will automatically stop on liquidation, unless the liquidator says otherwise. They will act in the interest of all the creditors generally and are impartial and independent;
• the liquidator will liaise with creditors of the company in order to accept or reject proofs of debt. They collect in all the assets, and via liquidation sales will gather as much of the company’s property as possible in order to repay anyone owed by the company;
• the liquidator will deal with all issues relating to the company, such as outstanding leases, secured creditors, goods that are on the premises that are subject to retention of title clauses, the employees, a pension fund etc, and anything else that arises.

What happens after the liquidation?

Once the liquidator is confident that all the assets and the creditors have been dealt with appropriately, then they will apply to have the company dissolved at Companies House and taken off the Companies Register.

If you have been served with a winding up petition – it is vital to quickly assess the situation and take legal advice on how best to stop the petition proceeding. There are various options available and our expert team has helped 100’s companies successfully resolve a winding up petition situation. Let us help you.

There are a number of different ways to approach the question how to stop a winding up petition. Much will depend on the circumstances and even if you contest some or all of the debt, sometimes there are commercial considerations at play. The mere existence of a winding up petition can be hugely damaging to a company – reputationally and financially. Even if a petition is not formally advertised – banks can still find out about them and freeze a company bank account. This can have significant knock on effects for a company.

How can I stop a winding up petition?

Our experts regulalry advise companies facing winding up orders and having dealt with 100’s of these claims before, will know how best to resolve the situation for you.

Some of the options are as follows:

• Pay the debt due. It might sound obvious – but if the winding up order debt is undisputed, then the simplest way is to pay the winding up petition debt following which, the petition can be withdrawn from court. This is vital as it reduces the chances of it becoming a matter of public record and also stops the chances of the petition being supported by another creditor of the company. The debtor might have to sort out the legal costs of the winding up petition but this is a quick way of sorting out and stopping a winding up order being made. If you react quickly, are in a position to pay the debt – the petition can be withdrawn in as little as 24 – 48 hours from service.
• Dispute the winding up petition. If the winding up petition debt is disputed, then it is possible to obtain what is known as an interim injunction to prevent winding up petition. Winding up petitions should only be used where the debt is not subject to a dispute. The dispute has to be a genuine one. Alternatively, the debtor may have a cross claim which is higher than the amount being claimed on the winding up petition. If the petitioner refuses to withdraw the winding up petition in circumstances where it has been notified that the winding up petition debt is disputed, then the debtor can obtain an injunction which is a type of court order to prevent the winding up order being made at court. Legal advice is required for the injunction process as it is quite a significant application to be made in the winding up order court. The injunction will prevent the winding up petition being advertised in the London Gazette, something which commonly will spell the end to a business. The downside of this course of action is that the petition might stay on the court record until the injunction hearing takes place.
• If there are procedural defects in the winding up petition document then this can also lead to a winding up order being dismissed. There are strict rules relating to the winding up procedure and winding up company law and if these are not followed, it can lead to the winding up petition being dismissed.
• It is usually possible to agree a negotiated settlement of the petition debt – and if terms can be met, this might lead to an early withdrawal of the petition from court. It is always sensible to explore this possibility.
• If it isnt possible to immediately have the petition withdrawn but you still need to keep trading, we can help you apply to court for a validation order to allow payments to be made by the company and avoid the risk of personal money claims against the directors later on.

Sadly it isn’t always possible to pay the petition debt and if you are being chased by HMRC – they are renowned for taking a tough line in winding up petitions. In these circumstances, our company rescue team can provide advice on various restructuring options such as company voluntary arrangements or administration. Or if there is no other alternative, the right insolvency process and advice to the directors about how best to avoid any future claims from the liquidator or Secretary of State for director disqualification.

A company can try and reverse a winding up order if one is made – but must act quickly and with expert legal advice. Rescission applications must be made withing 5 days of a winding up order being made and require detailed evidence being put together to explain why the order should be overturned. We can help with this.

Rescission of the winding up order

Under Rule 12.59 of the Insolvency (England and Wales) Rules 2016, a company can ask for a winding up order to be rescinded. This means that the winding up order is cancelled. The procedure for the application to rescind the winding up order is set out at paragraph 11.7 of the Practice Direction on Insolvency Proceedings.

In summary:

• the application must be brought by a creditor of the company or a contributory of the company subject to the winding up order;
• the application must be made urgently – within 5 business days of the date of the winding up order. In limited circumstances that period can be extended but there would have to be a very good reason why;
• the application for the rescission of the winding up order must be supported by detailed witness statement evidence also detailing the company’s assets and liabilities.

The type of things the court will look at include whether the applicant can show that the circumstances of the company are materially different from the circumstances that applied when the court made the winding up order.

Put a stop to the winding up proceedings

Pursuant to Section 147 of the Insolvency Act 1986, the liquidation of a company can be halted by seeking a stay / stop of all proceedings in the winding up. The applicants can be a creditor contributory or a liquidator of a company subject to the winding up order. It is up to the court as to whether to grant the stay of winding up proceedings but it can do where for example the company is solvent or it is satisfied that it is in the public interest for a stay to be granted. It may also be stayed where the courts believe that another jurisdiction is better placed to deal with the proceedings.

Appeal the winding up order

The company may appeal a winding up order made against it pursuant to Civil Procedure Rule 52.11. However, this remedy is limited and can only take place on the basis that the decision was either wrong or unjust because of serious procedural or other irregularities.

There are different procedures to be followed depending on where the winding up order was made:

• where the winding up order was made by the Registrar of the Companies court, appeals must be made to the judge of the high court (Insolvency (Amendment ) (No.2) Rules 2016);
• where the winding up order was made by a judge or District judge in the county court, the appeal is to a judge in the high court (Insolvency (Amendment ) (No.2) Rules 2016).
• Where the winding up order was made by a judge in the high court, the appeal must be made to the Civil Division of the court of Appeal.

A shareholder who is aggrieved has a remedy to apply to wind up the company on just and equitable grounds under insolvency legislation. This is also referred to as a ‘contributory petition’ as it is brought by a shareholder.

The only remedy available, should an order be granted, is for the company to be wound up.

Despite this remedy being found under the Insolvency Act, the company should not actually be insolvent, and in fact anyone bringing a claim would need to show that there will be a substantial surplus on a winding up.

Circumstances for winding up

The circumstances for bringing a petition are similar to those of bringing an unfair prejudice petition under Section 994. Often the two remedies are bought at the same time and put as alternatives.

Because this amounts to such a draconian remedy for a company, effectively putting it out of business immediately, other remedies should be pursued before a claim for the just and equitable winding up of the company is pursued. A court will need to be very sure before it orders that a company be wound up following a dispute within the company.

Grounds for bringing the petition

These are similar to the grounds for unfair prejudice.

A claim may be brought if there has been a material failure of the company to abide by the Articles or a shareholders agreement, and this failure has amounted to unfairness by the majority against the minority.

Alternatively, the majority of the company may have been constrained by an equitable consideration that isn’t contained within the company’s paperwork but were part of general reasonable expectations of the shareholder, and the company has acted inequitably against these expectations and as a result has caused prejudice to the minority.

Examples of unfair prejudice or conduct that might lead to a just and equitable winding up are:-

• material breaches of directors’ duties that cause an unfair prejudice to minority shareholders.
• a lack of probity in the conduct of the company’s affairs.
• shares being transferred or allotted without complying with rights of pre-emption therefore prejudicing minority shareholders.
• minority shareholders who had a reasonable expectation to take some role in the management of the company being excluded from this.
• incompetence or commercial mis-judgement on the part of the board that prejudices the minority shareholders.
• decisions not to declare dividends as a matter of policy (not just because money needs to be used for the benefit of the company or that no profits have been declared).
• there is a deadlock where the minority holds 50% of the voting rights.
• there has been an overall breakdown of trust and confidence between quasi-partners. Note however that if this is down to conduct of the petitioner, then they are unlikely to succeed. Other remedies may be available in order for the shareholder to exit the company in these circumstances.

If a petitioner delays in seeking this remedy, or their conduct is below standard during the course of the proceedings, the court might refuse to grant this relief.

Remedies for breach

The only remedy that the court can give if the petitioner’s case is made out is for the company to be wound up.

If this petition is bought at the same time as an application for unfair prejudice, then it may be that the court will follow that route as an alternative, and therefore will have wider powers to make whatever order they think is fit in the circumstances.

Normal time periods

From start to finish of a winding up petition, that is from the issue of the winding up order to the court making a formal order to wind up the company, it can take approximately 8-10 weeks. This however assumes that all of the steps proceed smoothly and for example, the winding up order is not disputed or adjourned.

Issuing of the winding up petition

To issue a winding up order, the relevant winding up petition document needs to be completed and this needs to be done very carefully in order to avoid dismissal of the petition happening earlier. This is especially true due to the current changes imposed by the Corporate Insolvency & Governance Act.

• it is vital to get the drafting correct;
• defective winding up petitions can lead to early dismissal and wasted costs;
• However, once the winding up petition is properly drafted then it is filed on-line with the appropriate court fee and the court will issue the winding up order.

Service of the winding up petition

The winding up petition then needs to be personally served on the company. At FWJ we can arrange for the winding up order to be served on the company by use of a process server. That usually happens within 24 hours of the issued winding up petition being received back from court.

The return date – when the parties are due back in court

When the issued winding up petition is received back from court, there will be a date on it indicating when the winding up petition hearing is. That hearing is normally 8-10 weeks after the date the winding up petition was issued, but it is now taking longer due to Covid.

What to do before the court hearing in order to wind up a company

In order to wind up the company at that hearing and obtain a winding up order, the petition must be advertised in the London Gazette.

• the winding up advert can only be placed 7 business days after service of the winding up order;
• prior to the winding up hearing, certain documents also need to be filed at court including the documents relating to whether the petition has been supported by other creditors as well as with a document known as a continuing certificate of debt;
• if the winding up procedure has been properly completed, then at the court hearing, the court will make a winding up order and the company will be formally placed into liquidation.

However, there are many things which might slow the process above down. For example if the winding up order is disputed by the debtor or the parties agree for whatever reason for the winding up petition to be adjourned for a further date in the future, then the process can take longer. However on average the winding up petition process takes approximately 8-10 weeks.

Winding up petition hearings normally take place once a week at a court. Many different winding up petitions will be listed for the same half day period – and the court itself is normally fully of barristers representing either the petitioner or the company who is facing a possible winding up. It can be a daunting place to be – but we can help arrange expert help with a good barrister to attend on your behalf if you need it.

What can happen at a winding up petition hearing

At the winding up petition hearing, the court has an number of options available to it:

• make the winding up order. If this happens – the company will officially be wound up and a liquidator appointed over it.
• dismiss the winding up petition. This can happen if the debt has been paid prior to the hearing and both sides are happy for it to be dismissed. Alternatively the Judge can dismiss it if there are procedural irregularities – for example it wasn’t served properly.
• adjourn (delay) the winding up petition until a later date. This is often as a result of an agreement between the petitioner and the company which is facing the petition – normally because they have reached an agreement to repay the debt over an extended period of time.
• make an interim order. This can be where the company alleges the debt is disputed – in which case the judge will give “directions” for the case to be listed for a full hearing and evidence exchanged in advance.
• make any other order as the court sees fit.

If a winding up petition is defended, the court are unlikely to make an order at the first hearing. It is likely that the hearing will be adjourned to a date one time in the future to allow the parties more time to put forward their respective cases.

It should be remembered that in the general winding up petition list, the court simply does not have sufficient time to hear detailed arguments from both the creditor and debtor, The case is likely to be adjourned to another date, where the court can take its time to consider the arguments put forward by both parties and to set a timetable for directions if necessary.