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.
