Part 2 Initial Action – the winding-up order
December 2011
3.16 Notice of a winding-up order
The court is required to give notice, by way of Forms 4.11, 4.12 or 4.13, to the official receiver of the making of a winding-up order forthwith [Note 1]. The court should then serve three sealed copies of the order upon the official receiver.
3.17 Obtaining sealed copies of the winding-up order
Where the court does not send three sealed copies of the winding-up order the official receiver (or the Petitions and Transfers Team in the London Region) should draw this deficiency to the court’s attention and ask for a further three sealed copies.
3.18 Checking the winding-up order
(Amended July 2012)
The official receiver should check the winding-up order to ensure the details on it are correct and complete. He/she should inspect the public file held on the company by the registrar of companies to establish that the company is correctly named in the order (paragraph 3.20), has not been dissolved, or is in the process of being dissolved, (paragraph 3.25), that its registered office is correct (paragraph 30.27), the company’s registration number is shown and that a court has not previously made an order against the same company (paragraph 3.28). If any of the above apply the official receiver should inform the petitioning creditor’s solicitors. To check the order the official receiver should not use any Companies House searches for which there is a charge.
3.19 Correcting winding-up orders – the slip rule
(Amended July 2012)
The Civil Procedure Rules allow the court, at any time, to correct an accidental slip or omission in a judgment or order. A party may apply for correction without notice [Note 2]. The court has the general power to rectify matters where there has been an error of civil procedure [Note 3]. Where it is clear that the court has made an error when drafting the winding-up order when compared to the details on the petition, e.g. an incorrect spelling of company name, or the company’s registration number has not been included in the order the official receiver should contact the court and ask for the order to be corrected and an amended version issued.
3.20 Action to be taken where the company's name is incorrect on the order
The official receiver should carefully check the name of the company as it appears on the winding-up order with the company's name as per the certificate of incorporation. If there is any discrepancy the petitioning creditor’s solicitor must be contacted to rectify the position. "Ltd" for "Limited" is an acceptable abbreviation as is "Co" for "Company" and "&" for "and" [Note 4]. Where there is no doubt that the company in question is the correct one (e.g. if there is an insignificant typographical error), the official receiver should proceed in the normal way.
3.21 Where the petitioning creditor's solicitors fail to take any action
Where the petitioning creditor’s solicitor fails to rectify the position the official receiver should consider making an application to the court for the rectification of the order [Note 5]. Where the error is typographical and the correct details appear in the petition the official receiver may make an application for rectification using the “slip rule” (see paragraph 3.19) [Note 6].
3.22 Special arrangements in the High Court
Where the winding-up order was made in the High Court and there is an error in the name of the company the Court Manager, upon the official receiver's application, is authorised to make any necessary amendments to ensure that the winding-up order is drawn up correctly. If there is any doubt, e.g. where the Court Manager thinks there might be another company in existence which could be confused with the company being wound up, the Court Manager will refer the matter to the Registrar.
3.23 A change in the company name before the winding-up order is made
A company may change its name or exchange its name with another company shortly before the hearing of the winding-up petition. Where this happens and the winding-up order is made in the wrong name, the official receiver should check the company number on the petition to make sure that the order has been made against the correct company. He/she should confirm that the change of name has been completed and registered with the registrar of companies (see paragraph 75.184). Paragraph 31.10.90 explains what action to take if the name change was unauthorised.
3.24 Where the company has correctly changed its name
If the official receiver is satisfied that the company has correctly changed its name he/she should notify the court (at the same time returning Form C14 (Notification to official receiver of order pronounced on petition for winding-up) and the petitioning creditor’s solicitors of his/her inability to proceed under the winding-up order. The petitioner should be asked to take steps to ensure the winding-up order is amended to include the correct company name. The official receiver should monitor the progress of his/her request and if, after a reasonable time (say 7 days), no such steps have been taken, he/she should make an application for directions of the court [Note 7]. For further information on making an application for directions see, Chapter 19 Part 4.
3.25 Dissolution and the winding-up order
On receiving notice of the winding-up order the official receiver should check the company’s public file at Companies House to see whether the company has been, or is in the process of being dissolved. If the company has already been dissolved the official receiver should follow the advice in paragraph 3.36. If the company is in the process of being dissolved the official receiver should lodge an objection to the dissolution with the registrar of companies. A letter of objection should be sent by email to enquiries@companieshouse.gov.uk and marked for the attention of the Dissolution Section. The objection should include a copy of the winding-up order, winding-up petition or Secretary of State’s order appointing the official receiver. The objection should include the statement that “the official receiver has only just commenced his/her duties as liquidator and the company will continue to be in “operation” until its winding-up is complete”. The official receiver may include any other relevant matters, for example where the company is still trading. See paragraph 38.30A for further details and Chapter 38 Annex 5 for a suggested letter of objection.
3.26 Restoring the company to the register
If a company has been dissolved prior to the presentation of the petition it is normal practice for the petitioning creditor to seek an order for the restoration of the company to the register together with the winding-up order. This is referred to as a “double-barrelled” order. Paragraph 3.36 provides guidance in those cases where the petitioning creditor does not obtain a “double-barrelled” order. Chapter 38 provides general advice on dealing with dissolved companies.
3.27 Incorrect registered office
Where the registered office address of the company is incorrect the official receiver should proceed with the winding up of the company as if the correct address had appeared in the petition. If any director or member of the company claims that the company was unaware of the petition because it was served at the wrong registered office they should be made aware of the provisions of rule 7.47(4) so that an opportunity is given for an early application to court for the rescission of the order. The official receiver should read Chapter 6 Parts 5 and 6 where he/she becomes aware an application for a stay of proceedings or a rescission has been, or is likely to be, made.
3.28 More than one order made against same company
The official receiver may find that a winding-up order has been made against the same company either in the same, or a different, court. Once the initial winding-up order has been made, irrespective of the date of the petition, the leave of court is required before a valid second order can be made [Note 8]. After confirming that leave of the court has not been obtained the official receiver should ask the petitioning creditor of the second winding-up order to apply to the court for a rescission of the order, which must generally be made within 5 working days of the order, or a stay of proceedings [Note 9]. The application to court should request that the petition costs be an expense in the previous winding up.
3.29 Where the petitioning creditor does not make an application
If the petitioner is unwilling to do make an application to rescind the order or stay the proceedings, the official receiver should make the application for a stay. The application should be supported by a report asking for an order for the payment of his/her costs, including the administration fee. It is anticipated that the costs will be paid by the petitioner. Where the court does not make such an order any debit balance will have to be written off.
3.30 Transfer of court proceedings
Chapter 7 provides advice and guidance in those cases where the case is to be transferred to another court.
3.31 Correct title to be used on notices and correspondence
Once the official receiver is satisfied that the details of the company on the winding-up order are correct he/she should ensure that all notices, letters, etc. issued clearly state that the company is in liquidation. Letters should begin RE [name of company] Limited (IN LIQUIDATION) [Note 10]. Where the official receiver is liquidator of a company which is also in administrative receivership any correspondence should state that the company is in administrative receivership [Note 11].
[Back to Part 1 The role of the official receiver] [On to Part 3 Initial Action – Companies House]