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
- 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.
- 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
- 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
- (i) either—
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.
