7.12 General power of transfer
Where winding up or bankruptcy proceedings are pending in the High Court that court may order that the proceedings be transferred to a specified county court. Likewise, where winding up or bankruptcy proceedings are pending in a county court that court may order that the proceedings be transferred to the High Court or another county court [note 1]. Additionally, a High Court judge may order that proceedings in a county court be transferred to the High Court [note 2]. The court to which the proceedings are transferred must have jurisdiction to wind up companies or, as the case may be, jurisdiction to deal with bankruptcy [note 3] (see paragraphs 7.7 and 7.8).
The order for transfer may be made by the court on its own motion, on the application of the official receiver or on the application of any person appearing to the court to have an interest in the proceedings [note 4].
7.13 Transfers from High Court to county court where jurisdictional requirements are not met
The High Court has the power to transfer winding up proceedings to any court that generally has the power to wind up companies even if the normal jurisdictional requirements (see paragraph 7.7) are not met in that case (for example, if the share capital is over the normal prescribed limit) [note 5]. This is equally true for the county court where any proceedings can be transferred to another county court as long as the court has jurisdiction to wind up companies or bankruptcies.
In practice, most applications to transfer proceedings will be made by the official receiver rather than an interested third party, and the Insolvency Rules 1986 recognise this with specific rules aimed at such an application.
The court will order a transfer of the proceedings if it is satisfied, on the application of the official receiver, that the proceedings can be conducted more conveniently in another court [note 6]. This extends not only to those cases where the insolvent traded or lived elsewhere, but also allows for those cases where an order can be connected to other insolvency proceedings.
The Insolvency Rules 1986 are silent on the grounds for transfer where a person other than the official receiver makes an application.
7.15 Transfer of consequential proceedings
Where proceedings are pending in the High Court, a judge of that court may order the transfer of proceedings connected to the insolvency proceedings. The proceedings that may be transferred are those brought by or against the insolvent for the purposes of enforcing a claim against the insolvent estate, or brought by any other person for the same purpose (for example, proceedings brought by a debenture holder or a mortgagee) [note 7].
7.16 Transfer to High Court for opinion – companies only
Where a question arises in any winding-up proceedings in a county court which all the parties, or one party and the judge, desire to have determined in the High Court then the judge may state the facts in the form of a special case for the opinion of the High Court. The proceedings, or part thereof, may then be transferred from the county court to the High Court for the matter to be determined [note 8].
7.17 Transfer of part of proceedings – bankruptcy
In contrast to corporate insolvency, part of a proceeding may not be transferred from a county court to the High Court with the proceedings in general remaining with the county court. In such circumstances it is proper for the whole of the proceedings to be transferred to the High Court [note 9].
7.18 Application for transfer by the official receiver
An application by the official receiver for proceedings to be transferred should be made on the standard form [note 10] and must be accompanied by a report by him/her setting out the reasons for the transfer and including a statement that either the petitioner agrees to the transfer or that the petitioner has been given at least 14 days notice of the transfer application and no objection has been received [note 11].
7.19 Notice of intended transfer
In the case of a petition filed at the High Court or one of its district registries, Petitions and Transfers team (please see paragraph 7.23 for an explanation of the role of Petitions and Transfers Team) will serve upon the petitioner a letter which advises that, in the event of an order being made against the company or debtor, the official receiver will transfer the proceedings to a local court. The letter constitutes the notice required to be made by the official receiver of the intention to transfer the proceedings (see paragraph 7.18). The exception to this process is in the case of petitions presented by HM Revenue and Customs as the Service holds a “blanket” consent to the transfer of such proceedings.
Occasionally, a petitioner may object to a proposed transfer. The petitioner may have misread the notice received regarding the transfer and believe that the proceedings will be transferred prior to the petition hearing. In other cases there may be good reason for the objection, for example where the petitioner foresees the need to make an application in the proceedings which they would prefer to conduct in the court of their choice. In such cases, unless the official receiver is firmly convinced of the validity of the petitioner’s objection (in which case he/she should withdraw the application for transfer), an ordinary application should be made to allow the court to consider the objection(s) and decide whether the proceedings should be transferred.
7.21 Application for transfer proceedings made by interested party
Where an application by an interested party is made to transfer proceedings, the applicant must give at least 14 days notice to both the official receiver attached to the court where the proceedings are pending and the official receiver attached to the court where it is intended that proceedings be transferred [note 13]. Where the official receiver objects to the proposed transfer an ordinary application [note 14] should be made to allow the court to consider the objection(s) and decide whether the proceedings should be transferred (for further information on originating applications see paragraphs 19.16 and 19.22).
Where an objection is received or where the official receiver objects to an application by a third party, a hearing date should be fixed by the court to hear the objections.
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