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.
