Part 5

Court Hearings

March 2001 

19.59 The judiciary

The majority of court applications within insolvency proceedings are heard by a district judge but certain applications will be heard by a High Court Judge in the High Court or a Circuit Judge in the county courts. Applications are heard by a district judge where the proceedings have been commenced in a District Registry of the High Court or in the county court but, where the proceedings have been commenced at the Royal Courts of Justice rather than a District Registry, applications are dealt with by a Registrar. Annex E shows in tabular form the hierarchy of judges in the civil courts and the courts in which they sit.

 

19.60 Modes of address in court

Judges of the High Court and county courts are addressed differently in court. The official receiver should ensure when attending any court hearing that he/she is addressing the judge in the appropriate manner. Annex E 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, e.g. the court usher, prior to any hearing.

 

19.61 Who hears the applications

(Amended December 2010)

Anything to be done under the Insolvency Act 1986 or the Insolvency Rules 1986 in the High Court may be done before a registrar, unless a direction to the contrary has been given or it is not within the registrar’s 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 19.65).

In the county court, the jurisdiction of the court to hear and determine an application may be exercised by the 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].

Where the application is made to the district judge in the county court or the registrar in the High Court, the district judge or the registrar may refer to the judge any matter which he/she thinks should properly be decided by the judge, and the judge may either dispose of the matter or refer it back to the district judge or registrar with such directions as that judge thinks just [Note 3].

 

19.62 Right of audience

Official receivers and deputy official receivers have the right of audience in the High Court and the county courts 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.

 

19.63 (Amended December 2010)

Due to the updating of advice and guidance in this part, the information previously contained in this paragraph is no longer available.

 

19.64 Public/private hearing

The general rule is that a hearing is to be in public [Note 5]. Where a hearing is held in public, members of the public are allowed to be present. 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.

The requirement for a hearing to be in public does not require the court to make special arrangements for accommodating members of the public

[Note 6].

19.65 Applications to be heard by a judge

(Amended November 2012)

Certain insolvency applications must be made directly to the judge [Note 7]. Applications include:  

1. Applications to commit any person to prison for contempt;
2. Applications for an injunction;
3. Applications for an administration order;
4. Applications for the appointment of a provisional liquidator;
5. Interim applications and applications for directions or case management after any proceedings have been referred to the judge (except where liberty to apply to the Registrar has been given.

All other applications are made to the registrar in the first instance, who may give any necessary directions and may, if the application is within his/her jurisdiction to determine, in his/her discretion, either hear and determine it himself/herself or refer it to a judge. In deciding whether to hear the proceedings or to refer or adjourn them to a judge the Registrar should consider the following factors- 

1. The complexity of the proceedings;
2. Whether the proceedings raise any new or controversial points of law;
3. The likely date and length of the hearing;
4. The public interest in the proceedings.

 

19.66 Applications to be heard in public - deleted November 2012

 

19.67 Acts carried out by court manager / chief clerk

(Amended November 2012)

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 9]. The CPR practice direction for Insolvency proceedings currently lists only applications in the Royal Courts of Justice  that may be dealt with by the member of court staff in charge of the winding up list which are [Note 10]:

Company 

1. To extend or abridge time prescribed in the Rules in connection with winding up [Note 11] [Note 12];
2. For permission to withdraw petitions [Note 14];
3. For the substitution of a petitioner [Note 15];
4. By the official receiver for limited disclosure of a statement of affairs [Note 16]
5. By the official receiver for relief from duties imposed on him/her by the Rules [Note 17];
6. By the official receiver for permission to give notice of a meeting by advertisement only [Note 18];
7. To transfer proceedings from the High Court to a county court [Note 19];

Bankruptcy 

1. By petitioning creditors, to extend the time for hearing petition [Note 20].
2. By the official receiver :

a. to transfer proceedings from the High Court to a county court [Note 21];

b. to amend the full title of the proceedings [Note 22] [Note 23].

In District Registries or county courts all such applications must be made to the district judge.

19.68 Undertakings

A formal undertaking [Note 24] given by one of the parties to an action and recorded in court is equivalent to an injunction (see paragraph 19.35) and the breach of it can be punished in the same way as for the breach of an injunction, i.e. as contempt of court [Note 25]. 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 an order requiring service.

An undertaking given by a party in person can usually be enforced as if it were an order of the court [Note 26]

By the County Court Rules 1981, Order 29, Rule 1A (which was retained in the CPR as a rule of reference) a copy of the undertaking should be served, that is handed to the party giving the undertaking, before he/she leaves the court building or, failing this, posted to him/her at his/her place of residence, where this is known, or through his/her solicitor. Where delivery cannot be effected in this way, 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. The form used is county court form N.117or PEGUTC [Note 25] available on the OROS intranet pages. The undertaking is not enforceable against the party giving the undertaking in the absence of such service. The aim of this rule is to ensure that an undertaking to the court is recorded and served on the giver personally in order to remove all scope for argument as to the precise terms of the undertaking and to the extent of his/her knowledge. Official receivers should use the form wherever possible if the bankrupt/director is present and seek a direction from the judge for him/her to sign the form before leaving court.

19.69 (Amended December 2010)

Due to the updating of advice and guidance in this part, the information previously contained in this paragraph is no longer available.

 

19.70 Adjournment of hearing - directions

(Amended December 2010)

The court may at any time adjourn the hearing of an application on such terms as it thinks just [Note 27] and it may at any time give such directions as it thinks just as to [Note 28] – 

1. service or notice of the application on or to any person;
2. whether particulars of claim and defence are to be delivered and generally as to the procedure on the application including whether a hearing is necessary;
3. the matters to be dealt with in evidence. 

In addition, the court may give directions as to the manner in which any evidence is to be adduced at a resumed hearing and in particular [Note 29]: 

1. the taking of evidence wholly or partly by witness statement or orally;
2. the cross-examination of the maker of a witness statement; or
3.  any report to be made by an office holder.

 

 

 

[Back to Part 4A - Supporting evidence on an application] [On to Part 6 - Acting as a witness]