Part 10 – Court Hearings
June 2014
Annex A shows in tabular form the hierarchy of judges and the courts they sit in. Paragraphs 19.165 and 19.166 indicate the civil courts which deal with insolvency proceedings and which member of the judiciary will usually hear them.
19.165 Insolvency applications in the High Court of Justice
The majority of insolvency applications in the High Court of Justice will be heard by a registrar, unless a direction to the contrary has been given or it is not within his/her power to make the order required [Note 1]. The applications which must be made to the judge rather than the registrar are listed at paragraph 19.172).
19.166 Insolvency applications in the County Court
The majority of insolvency applications in the District Registry of the High Court or the County Court will be heard by a district judge, unless a direction to the contrary is given or it is not within the district judge’s power to make the order required [Note 2].
19.167 Power to refer insolvency proceedings to a judge
Where an application is made to the registrar in the High Court or the district judge in the County Court the registrar or district judge may refer any matter he/she thinks suitable to the judge. On receiving the application the judge may deal with the application or refer it back to the district judge or registrar with such directions as he/she thinks just [Note 3].
19.168 Modes of address in court
There are different modes of address for members of the judiciary in the High Court of Justice and the County Court. The official receiver when attending a court hearing should ensure he/she addresses the member of the judiciary in the appropriate manner. Annex A provides the appropriate mode of address for the various members of the judiciary. If for any reason the official receiver is unsure of the correct mode of address, he/she should consult a member of the court staff, for example the court usher, prior to any hearing.
19.169 Official receiver’s right of audience
The official receiver and deputy official receivers have the right of audience in the High Court and the County Court in insolvency proceedings [Note 4]. "Right of audience" means the right to exercise any of the functions of appearing before and addressing a court, including the calling and examining of witnesses [Note 5].
19.170 Public and private hearings
As a general rule a hearing will be held in public [Note 6]. Members of the public are allowed to be present at a hearing held in public. However for a public hearing the court does not have to make special arrangements for accommodating members of the public [Note 7]. A hearing may be heard in private if, amongst other matters, the publicity would defeat the object of the hearing, for example to decide on whether the bankrupt’s address should be publically available [Note 8]. Where the hearing is private, only the parties and their representatives are entitled to be present. Private hearings are usually held in chambers, i.e. the office of the judge presiding over the hearing.
19.171 Application to a registrar/district judge in insolvency proceedings
All applications other than those mentioned in paragraph 19.172 can be made to the registrar/district judge in the first instance [Note 9]. The registrar/district judge may refer the application to a judge/registrar after considering the following factors:
Where the application is within the registrar’s jurisdiction he/she may hear and determine it after giving any necessary directions.
19.172 Applications to be heard by a judge in insolvency proceedings
Certain insolvency applications must be made directly to the judge. Such applications include:
19.173 Duties delegated to the court manager/chief clerk
The registrar or district judge may authorise any act of a formal or administrative nature to be carried out by the chief clerk or any other officer of the court acting on his/her behalf, in accordance with directions given by the Lord Chancellor [Note 12] .
19.174 Restrictions on the right to delegate duties to the court manager/chief clerk
The right to delegate duties to the court manager/chief clerk is restricted to applications in the Royal Courts of Justice. In District Registries or the County Court all applications listed below must be made to the district judge [Note 13]. The matters which may be dealt with by the member of court staff in charge of the winding up list are:
The matters which may be dealt with by the member of court staff in charge of the bankruptcy list are:
A formal undertaking (ISCIS word template form PEGUTC or the County Court form N.117) given by one of the parties to an action and recorded in court is equivalent to an injunction (see paragraph 19.75). A breach of undertaking can be punished as a contempt of court, the same as a breach of an injunction [Note 22]. An undertaking is binding upon the giver as soon as it is accepted by the court and, unlike an injunction the obligation to comply is not imposed by a court order requiring service. However steps are usually taken to serve a copy of the undertaking on the giver (see paragraph 19.176). An undertaking given by a party in person can usually be enforced as if it were an order of the court [Note 23].
19.176 Service of an undertaking
A copy of the undertaking should be handed to the party giving the undertaking before he/she leaves the court building. If this is not possible the undertaking may be posted to his/her place of residence, where this is known, or care of his/her solicitor. Where delivery cannot be effected by post the court officer should deliver a copy of the document to the party for whose benefit the undertaking is given and that party should cause it to be served personally as soon as is practicable [Note 24]. A record of personal service of an undertaking on the giver removes the scope for future argument as to the precise terms of the undertaking and to the extent of his/her knowledge.
19.177 The official receiver and undertakings
Where the court receives an undertaking, in person, from a company director, a bankrupt or a third party the official receiver should seek a direction from the judge for the director/bankrupt/third party to sign the form PEGUTC before leaving court. The official receiver should ask the court to explain the effect of the undertaking and the consequences of a failure to comply with its terms. If the director/bankrupt/third party is not in court the official receiver should follow the alternative procedures outlined in paragraph 19.176. Any further guidance should be sought from Technical Section.
19.178 Adjournment of hearing – directions
Within insolvency proceedings the court has the power, at any time, to adjourn the hearing of an application on such terms as it thinks just. In addition additional directions may be given as to;
19.179 Adjournment of hearing – directions as to evidence
After adjourning the hearing (see paragraph 19.178) the court may, in post 6 April 2010 petition insolvencies, give directions as to the manner in which any evidence is to be produced at the resumed hearing, in particular:
For pre 6 April 2010 petition insolvencies the now replaced rule 7.10 (2) (c) of the Insolvency Rules 1986 applies. The main differences being that written evidence would be wholly or in part by affidavit and the hearing in court may be conducted in chambers.
[Back to Part 9 – Complying with time limits] [On to Part 11 - Acting as a witness]