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.
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.
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.
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.
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.
