Debtor's bankruptcy petition

Debtor's bankruptcy petition

September 1997 

45.136 Grounds for the petition

(Amended March 2011)

A debtor can petition for his own bankruptcy only on the grounds that he is unable to pay his debts. The petition must be accompanied by a statement of affairs in the prescribed form [Note 1] [Note 2]. All of these forms can be obtained by accessing The Service website at www.insolvencydirect.bis.gov.uk.

Please note that Her Majesty’s Court Service (HMCS) will no longer provide the bankruptcy packs which included copies of the forms a debtor requires to petition for their own bankruptcy. If it is clear that the debtor is unable to access and print the forms from the internet, they are in the first instance to be directed to the Insolvency Enquiry Line (IEL). The IEL can be contacted by telephone on 0845 602 9848 or by email at insolvency.enquiryline@insolvency.gsi.gov.uk

 

45.137 Form and content of the petition

(Amended October 2010)

The petition must contain the following information in relation to the debtor [Note 3]:-

a. His/her name, address and occupation;

b. the name(s) in which he/she carries on business and whether he/she carries on that business alone or with others;

c. the nature of his/her business and the trading address(es);

d. the names or names in which he/she has carried on business during the period in which the bankruptcy debts were incurred and whether he/she carried on those businesses alone or with others; and

e. any address(es) at which he/she has resided or carried on business during that period, and the nature of that business.

If the debtor has used any other names than the one given, these must be included in the petition [Note 4]. The information provided in the petition determines the full title of the proceedings [Note 5]. 

 

45.138 Admission of insolvency

The petition must contain a statement that the debtor cannot pay his debts and a request that a bankruptcy order be made against him. Details of previous bankruptcies together with information regarding any composition scheme of arrangement or voluntary arrangement into which the bankrupt has entered or administration order to which he has been subject in the previous 5 years must be given and if there is a voluntary arrangement currently in force, the name and address of the supervisor must also be given [Note 6]. 

 

45.139  Statement of affairs

(Amended October 2010)

The petition must be accompanied by a statement of affairs verified by a statement of truth, prepared on the statutory forms. The statement of affairs should contain details of the debtor’s creditors and his assets and liabilities [Note 1] [Note 7] [Note 8].

 

45.140 Procedure on issue, presenting and filing

(Amended October 2010)

The petition and the statement of affairs should be filed in court with three copies of the petition and one copy of the statement of affairs [Note 9]. One copy of the petition is returned to the debtor endorsed with the hearing time, date and venue, one copy of the endorsed petition and the copy of the statement of affairs is sent to the official receiver, and the spare copy of the petition is retained by the court to be sent to an insolvency practitioner if one is appointed under section 273 to prepare a report (see paragraph 45.143) [Note 10].

Although it is no longer general practice, the Rules provide that where the court hears a petition immediately, it may, instead of sending documents to the official receiver, give the documents to the bankrupt and direct the bankrupt to deliver the documents to the official receiver as soon as reasonably practicable [Note 11].

Where the petition is not to be heard immediately, then a date will be fixed for a hearing as soon as possible. If the petition made reference to a voluntary arrangement being in force, then the court will fix a hearing date, giving 14 days notice to the supervisor of the voluntary arrangement. The supervisor has the right to attend and be heard at the hearing [Note 12]. 

 

45.141 Notice to the Chief Land Registrar

Once the petition is filed the court sends notice to the Chief Land Registrar immediately for registration in the register of pending actions [Note 13].

 

45.142 Appointment of insolvency practitioner by the court

At the hearing the court may make a bankruptcy order or it may appoint an insolvency practitioner under section 273 to prepare a report under section 274 as to the prospects of a voluntary arrangement  (see paragraph 45.145). 

 

45.143 and 45.144 

The Enterprise Act 2002 section 269, Schedule 23 Paragraph 2 states that section 275 of the Act (bankruptcy summary administration) shall cease to have effect. As a consequence paragraphs 45.143 and 45.144 have been deleted. 

 

45.145 Insolvency practitioner’s report

(Amended October 2010)

In its report the Cork Committee stated that bankruptcy should be an undertaking of last resort, especially where the amounts involved are small. Accordingly, in debtors’ petition cases, where the debtor’s unsecured liabilities are less than £40,000, his assets are more than £4,000 and he has not been adjudged bankrupt nor entered into a scheme or composition with his creditors in the five years before the presentation of the petition, the court must not make a bankruptcy order if it considers it more appropriate to appoint an insolvency practitioner to prepare a report [Note 14].

Where the court appoints an insolvency practitioner to prepare a report, a sealed copy of the order and copies of the petition and statement of affairs are sent to him/her and a venue fixed for the consideration of his/her report [Note 15]. The insolvency practitioner must enquire into the debtor’s affairs and determine whether the case is a suitable one for a voluntary arrangement and whether the debtor is willing to enter into such an arrangement [Note 16]. The insolvency practitioner must file his report at court and send one copy to the debtor, so as to be received not less than three business days  before the hearing (three days in pre 6 April 2010 petition cases), and a further copy to the Official Receiver [Note 17]. The debtor is entitled to attend and be heard at the hearing [Note 18]. At the hearing to consider the report the court may make an interim order under s252 to facilitate a voluntary arrangement or make a bankruptcy order [Note 19]. In practice, such referrals under section 273 are few and far between. 

 

 

[Back to Part 11 - Creditor’s bankruptcy petition – procedure and hearing] [On to Part 13 – Partnerships generally]