The court has additional powers to make orders covering matters which come to light as a result of an application for the production of documents or a private examination. In particular the court, on application by the applicant, can order the delivery of property or the repayment of a debt [Note 1].
In the County Court as an alternative to obtaining additional court orders (see paragraph 23.61) the respondent may agree, by way of an undertaking, to provide information, deliver up property within a specified period, or provide another such undertaking on the General Form of Undertaking (Form N117). The official receiver should ask the court to make an order for the respondent to complete and sign the undertaking form before leaving. The respondent by signing the form accepts that a failure to fulfill the undertaking could result in him/her being sent to prison for contempt of court.
If the official receiver believes the respondent has absconded or is about to abscond in order to avoid being examined, an application to the court may be made for a warrant for his/her arrest to be issued and/or an order for the seizure of records, property, etc in his/her possession [Note 2].
When the official receiver becomes aware that attendance is unlikely [Note 3], an application, without notice to any other party, should be made to the court for an order that the respondent should surrender his/her passport or, in exceptional circumstances, that a warrant of arrest be issued and/or for the seizure of records, property, etc [Note 4]. The application should show that service of the application (see paragraph 23.44) was properly effected, that a reasonable sum was offered for expenses and clearly set out the grounds for his/her belief that the respondent is unlikely to attend. The official receiver should also request that any records or property seized should be delivered to him/her or otherwise dealt with according to his/her instructions [Note 5].
The official receiver may suspect that a debtor is unlikely to attend a private examination however he/she does not have the powers mentioned in paragraph 23.64. A warrant for the debtor’s arrest can only be issued if he/she fails to attend court for the hearing [Note 6].
Where a private examination has been fixed in the High Court, it has power to restrain the respondent from leaving the jurisdiction. Where the official receiver has grounds to believe that the respondent will not attend the examination, or where the examinee has been abroad and has returned to the jurisdiction, he/she should consider making an application to the court without notice to any other party for such a restraining order [Note 7]. For further information on absconding or leaving the jurisdiction, see Chapter 13, Part 8.
Where the respondent fails to attend for a private examination, the court on the application of the applicant may issue a warrant for his/her arrest [Note 8]. In cases where a warrant for arrest is to be issued and the petition was presented prior to 6 April 2010 the form PEWA (Warrant for failure to attend examination) should be used. The warrant should ask that the respondent be delivered to the court rather than to prison. In cases where the petition was presented after 6 April 2010 the County Court Civil Form N40A should be obtained from the court and used. In this instance warrant specifies that the respondent be delivered to the court.
Where the respondent is arrested, a court official or a police officer should bring him/her before the relevant court immediately for examination. In practice this may not always be possible. In this instance the arrested person will be taken into prison custody and the applicant should apply to the court for an early hearing and for the respondent to be brought from prison at the relevant time. If the court is willing to consider releasing the respondent prior to the hearing after receiving appropriate undertakings he/she should be brought before the court earlier [Note 9]. In cases where the respondent has been arrested and the petition was presented prior to 6 April 2010 the appropriate version of form WARPD should be used. In cases where the petition was presented after 6 April 2010 the County Court Civil Form N288 should be obtained from the court and used. For further information regarding powers of arrest and enforcement of warrants, see Chapter 13, Part 7.
[Back to Part 4 – Private examination – the hearing]