June 2008
Part 4 Companies – Appeals
6.61 Appeal against an order in corporate insolvency proceedings (winding-up order)
(Amended December 2010)
The official receiver should only notify Technical Section when he/she receives notice of an appeal against an order in corporate insolvency proceedings (normally an appeal against the winding-up order) [Note 1] [Note 2] if he/she requires legal representation at the appeal hearing. The procedure to be followed will be as outlined in paragraph 6.10 except that the fees should be calculated in accordance with paragraphs 6.88 and 6.89. The official receiver should be aware that the permission of the court is required for all appeals in insolvency proceedings, in accordance with Insolvency Rules 1986 rule 7.49A(1) ( for post 6 April 2010 petition cases) and Part 52.3 of the Civil Procedure Rules 1998 (CPR) as applied by the Rules.
6.62 Notice of appeal does not stay winding-up proceedings
Notice of appeal does not operate as a stay of the proceedings and where necessary the official receiver should remind the directors and/or the company’s solicitors of this. It should be remembered that the parties to the appeal are the company and the petitioner. The official receiver should maintain a neutral stance in this matter.
For further information on appeal procedures see Part 1 paragraphs 6.6 to 6.11. Also refer to Part 1 paragraph 6.15 for information regarding the procedure where the court offers an oral hearing to consider an application for permission to appeal.
When an appeal is pending, the official receiver should not seek any order (e.g. public examination of an officer [Note 3]) or use any powers (e.g. disclaiming onerous property [Note 4]) affecting the company which might prove undesirable or unnecessary if the appeal succeeds (see paragraph 6.14).
If an appeal against a winding-up order is successful, it is likely to result in the winding-up order being rescinded by the appellate court [Note 1] (see paragraph 6.83). In that event, the order made should include direction with regard to the disposal of the petition deposit and for the payment of the official receiver’s costs. If difficulty arises in recovering the costs so awarded, see paragraph 6.17.
6.65 Appeal against decision of Secretary of State or official receiver
An appeal against a decision of the Secretary of State or official receiver must be made within 28 days of the notification of decision [Note 5] (e.g. when acting as the liquidation committee to sanction legal proceedings). Where an appeal has been lodged, the official receiver should report the full facts to Technical Section and provide a copy of the notice of appeal. Technical Section will consider how the matter should proceed.
6.66 Appeal against decision on proof of debt for meetings purposes
(Amended December 2010)
If a creditor or contributory is dissatisfied with the chairman’s decision admitting or rejecting his/her proof of debt for the purpose of his/her entitlement to vote [Note 6], or in respect of any matters arising under rule 4.67, he/she may apply to the court for the decision to be reversed or varied. For cases with petitions on or after 6 April 2010 the Rules state that an application by way of an appeal against a decision of the chairman must be made within 21 days of the date of the meeting [Note 6a]. Where the chairman is the official receiver ,and the petition date was before 6 April 2010, the appeal period is as set out in paragraph 6.65. If the official receiver convenes any other meeting in the capacity of liquidator [Note 7] [Note 8] and any person is aggrieved by an act or decision of the liquidator, that person may apply to the court and the court may confirm reverse or modify the act or decision complained of or make such order in the case as it thinks just [Note 9].
6.67 Appeal against a decision on proof of debt for dividend purposes
If a creditor is dissatisfied with the liquidator’s decision with respect to his/her proof of debt (including any decision on the question of preferential status), he/she may apply to the court for the decision to be reversed or varied. The application must be made within 21 days of his/her receiving the written statement from the liquidator of his/her decision to reject a proof for dividend purposes either in whole or in part. A contributory or any other creditor, if dissatisfied with the liquidator’s decision in admitting or rejecting the whole or any part of a proof [Note 10], may also make such an application within 21 days of becoming aware of the liquidator’s decision [Note 11] (see chapter 16 Part 6 and chapter 36).
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