Court orders
April 2004
13.51 General assistance from the courts
The official receiver can apply to court for directions relating to any matter arising from insolvency proceedings. Where a person fails, without reasonable excuse, to co-operate with the official receiver or to comply with what is legally required of him/her, the official receiver may apply to the court for directions or for such order as may be necessary to enforce the co-operation or compliance. Failure to comply with an order of the court is contempt of court and could result in imprisonment (see Part 3). An application for directions etc. can be made verbally at the hearing of a public or private examination. Alternatively an application may be made to the court (see paragraph 13.55).
Notes: [r10.3]
13.52 Orders to enforce compliance in a liquidation
The court may, on application by the official receiver or liquidator, make such orders as it thinks necessary for the enforcement of obligations falling on any person in accordance with section 143(2) and section 235.
Notes: r7.20(1)(b) & (c)]
If the official receiver wishes to enforce the co-operation of a company officer (or any other person falling within section 235 in relation to that company), but does not intend to question him/her before the court, he/she should not apply for the public examination of the person under section 133 but should instead apply to the court for an order under Rule 7.20 requiring that the action be done or information provided etc (Re Wallace Smith Trust Co Ltd [1992] BCC 707).
The official receiver can request that a rule 7.20 order have a penal clause inserted. If a company officer fails to comply with such an order the official receiver can make an application to court that the director be committed for contempt (see Part 7). When considering whether to apply for the public examination of an officer (or any other person falling within section 235 in relation to that company) or for an order under rule 7.20 official receivers will be aware of the tolerance of their local courts and should use their own judgment to establish the correct method for enforcing co-operation in the circumstances of each case.
Note: [r7.20(3)]
The court can order that all costs of and incidental to an application for an order under rule 7.20 shall be borne by the person against whom the order is made.
13.53 Bankruptcy under general control of court
An undischarged bankrupt or a bankrupt whose estate is still being administered has an obligation to do whatever the court directs him/her to do for the purposes of his/her bankruptcy or the administration of the estate. The official receiver or trustee can apply at any time for a direction under this section.
Note: [s363(2) & (3)]
13.54 When application may be made
An application for a court order may be made at any time to enforce;
a. the provision of information to, and attendance upon, the official receiver;
Notes: [s235(2) and r7.20(1)(c), s291(4) and 363(3)]
b. the submission of a statement of affairs and related information; and
Notes: [s131(1) and r7.20(1)(a), s288(1) and 363(3)]
c. the delivery of any property, books, papers or records to which the company or bankrupt appears to be entitled.
Notes: [ s234(2), s237(1), s367(1)]
Similar orders to a) and c) can be obtained against a trustee of a bankrupt’s estate or a liquidator of a company who fails in his/her duty to provide access to any of his/her relevant records to the official receiver. The official receiver should, however, always refer the matter to Insolvency Practitioners Policy Section at HQ London before seeking any such order.
Notes: [s143(2) and r7.20(1)(b), s305(3) and r6.149]
In a winding up, the court’s powers to enforce delivery of company property can be exercised by the official receiver as liquidator or provisional liquidator on his/her own authority, but he/she should always apply to the court for an appropriate order unless urgency or some other circumstance make action under his/her own authority essential.
Notes: [s234, r4.185]
An application for a court order should made using Form GENAPP (see Annex 1). Although Annex 1 relates specifically to an inter partes application under rule 7.20 in winding up proceedings, Form GENAPP is the correct form to use for an application and the same format should be used with appropriate amendments for partnership or bankruptcy proceedings. The application may include a request for a public or private examination as an alternative, in case the court refuses to make the specific order sought, but it should in any event comply with rules 7.3 and 7.4 (both as amended by the Insolvency (Amendment) Rules 2010), which give instruction as to the form, content, and the filing and service of the application.
Notes: [r7.20] [Form GENAPP]
(Amended October 2010)
The court can hear the application without notice being served on any other party. If the court wishes to hear the application with notice, the application should be served on the respondent at least 14 days before the date of the hearing.
The provisions of the Civil Procedure Rules 1998 (CPR) Part 6 and the accompanying practice directions, apply as regards any matter relating to the service of court documents in insolvency proceedings. CPR rules 6.3(1) and 6.20(1) provide for the various methods of service which may be used for service of applications and other court documents. These include personal service, service by first class post or document exchange (DX) and service by fax or other electronic means. See chapter 19 part 7 for further information on the various methods of service available to the official receiver and how they should be effected.
Unless the court otherwise directs, the hearing of an application must be in open court.
Notes: [r7.5A] [r7.4(5) as amended by the Insolvency (Amendment) Rules 2010] [r12.10 and r 12.11 (apply to pre 6 April 2010 petition cases only)] [r12A.17 (applies to post 6 April 2010 petition cases only)] [r7.6A]
The form of order which will be made by the court in response to an application will be similar to that given in Annex 2. The order includes a penal notice which states that the respondent may be held in contempt of court if he/she does not obey the order. The official receiver should ensure that the penal notice endorsed on the order is applicable to all the requirements of the order, so as to prevent the respondent avoiding committal by complying with only part of the order. It should be clear that any breach of the order may result in the person’s committal. A penal notice should also be endorsed on an order adjourning a public or private examination if committal for contempt of court is to be pursued upon failure to comply with any requirement imposed in the adjournment order. In such cases the adjournment order should also be served personally as specified below.
(Amended October 2010)
Neither the Act, the Rules nor the CPR require court orders to be served personally. Where, however, an individual fails to comply with an order of the court, a warrant for committal can only be issued if the order in question was served upon the individual personally, despite the fact that they may have been present in court when the order was made.
Where an order under rule 7.20 is obtained the official receiver must make arrangements for personal service of the order, either by a member of his/her own staff or by a process server. The order must be served in accordance with the Insolvency Rules 1986, Part 6 of the CPR98 and all accompanying practice directions. See Chapter 19 Part 7 for further information on personal service.
Notes: [CPR98 Parts 6 and 40] [r12.11 (applies to pre 6 April 2010 petition cases only)] [r12A.17 (applies to post 6 April 20100 petition cases only)] [CPR Schedule 2 CCR Order 29 – Committal for breach of order or undertaking] [CPR Schedule 1 RSC Order 45 – Enforcement of judgments and orders: general]
13.59 Date of service of order
(Amended November 2011)
CPR98 rule 6.26 sets out a table showing deemed dates of service by first class post, by delivering a document to or leaving it at the place of service, through a document exchange, by fax or by other electronic method and by personal service. This table is reproduced in Annex 3.
There is no restriction upon when a document may be served. It may be served at any time of the day or night, on a Sunday, on Christmas Day or on any other Bank Holiday. When the document is served after 4.30 pm or on a non-business day it is to be treated as served on the next business day. "Business day" means any day except Saturday, Sunday or a bank holiday; and "bank holiday" includes Christmas Day and Good Friday. Where the official receiver serves a court document a ‘certificate of service’ must be completed and filed at court within 21 days of service having occurred. The Court Service form N215 should be used for the certificate of service and a template can be found on ISCIS ‘Docs’ tab as form ‘CERTSERV’.
Notes: [CPR98 Part 6]
Under the Practice Direction on Insolvency Proceedings, service of documents in the High Court cases is the parties’ responsibility, and will not be undertaken by the court (except where the Insolvency Rules 1986 provide otherwise).
For further information relating to service generally, see Chapter 19 Part 7 - Court practice and procedure.
13.60 Service by an alternative method
(Amended October 2010)
Where, a rule 7.20 or similar order cannot be served personally (e.g. because the person evades service), the official receiver can seek an order for service by an alternative method or at an alternative place, in accordance with CPR98 r6.15. Where the court makes an order permitting alternative service, it will specify the method of service and the date of deemed service.
Notes: [r12.11 (applies to pre 6 April 2010 petition cases only)] [r12A.17 (applies to post 6 April 2010 petition cases only)]
A respondent to an order for attendance should be free to attend upon the official receiver at any time he/she chooses within the limits of the order. If he/she attends within the limits of the order but without an appointment, every effort should be made to examine him/her at that time; even a short examination will be better than none. If a further appointment is necessary this should be confirmed by a letter.
13.62 Failure to comply with court order
A person who fails to comply with a court order may be in contempt of court (see Part 3). If that person attends court on any subsequent occasion, e.g. for an adjourned public examination, and the court is satisfied there is no reasonable excuse for the failure to comply, the matter can be referred immediately to a judge sitting in open court to consider committing him/her to prison for contempt. It should be noted that any application to commit for contempt of court may only be dealt with by a judge and not by a registrar/district judge and must, unless otherwise ordered, be heard in open court Alternatively the official receiver may formally apply to the court for the committal to prison of that person (see Part 7).
Notes: Practice Direction Insolvency Proceedings [2000] BCC 927 Paragraph 5.1(1)
13.63 Action after non-compliance
(Amended November 2011)
The period specified in the court order is intended to be not only the time within which the respondent must co-operate but also the period within which the official receiver cannot begin proceedings for committal. Counsel has expressed the view that the effect of the order is to give the official receiver the right, but not the obligation, to apply for a committal order immediately after the relevant period expires. Nevertheless, further action should normally be taken immediately failure to comply is apparent.
13.64 Application for committal
(Amended October 2010)
Note: [r7.2]
A formal application for committal for contempt should be made in writing and supported by an affidavit which clearly sets out the extent to which an earlier order of the court has not been complied with. In addition, notice of an application to commit to prison for contempt must simultaneously be served personally on the respondent (see Annex 4).All applications for committal for contempt should be made direct to a judge and will be heard in open court, unless the court orders otherwise (see also Part 3 and Chapter 19 Part 5 - Court Practice and Procedure).
Notes: [Practice Direction Insolvency Proceedings [2000] BCC 927 Paragraph 5.1(1)] [CPR RSC Order 52 – Committal] [CPR CCR Order 29 – Committal for breach of order or undertaking]
13.65 Costs of application where the respondent is a bankrupt
There are no provisions under s 363(3) or 367(1) that would enable the official receiver to recover the costs incurred in making an application for a court order to enforce compliance where the respondent is a bankrupt. The costs in such cases should be debited to the estate concerned.
13.66 Costs of application where respondent is not a bankrupt
Note: [r7.20(3), r6.149(2)]
Where the respondent is not the bankrupt the official receiver should request the court to order that the costs of and incidental to the application be paid by the respondent, including where the respondent is the trustee or liquidator of the insolvent estate (other than the official receiver). The official receiver should then attempt to recover these costs, including swearing fees and the fees and expenses of any process server employed, from the respondent. The official receiver should not seek anything in the nature of punitive costs from the examinee. Any failure by a company officer to pay the costs should be taken into account if the official receiver submits a disqualification report and/or a prosecution report (see Part 11) and failure by an insolvency practitioner to pay the costs should be notified to Insolvency Practitioners Policy Section at HQ London.
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