The winding-up petition

The winding-up petition

September 1997 

45.38 Verification of winding-up petition

(Amended October 2010)

The form of the winding-up petition is prescribed by the Insolvency Rules and this form must be used with such variations, if any, as circumstances may require [Note 1] [Note 2].  

The petition must be verified by a statement of truth, authenticated by the petitioner or an authorised person [Note 3].

The statement of truth (unless it is contained in or endorsed upon the petition which it verifies) must be sufficient to identify the petition and must specify [Note 4]:

a. the name and registered number of the company,

b. the name of the petitioner, and

c. the court in which the petition is to be presented,

A statutory form for the statement of truth to verify a winding-up petition is not provided in the Rules. 


45.39 Outstanding petitions - Central Registry of Winding-Up Petitions

(Amended October 2010)

Any person seeking to present a petition must first check that there is no outstanding petition against the company. A computerised register of winding-up petitions is maintained for all petitions presented to either the Companies Court, a Chancery District Registry or a county court with jurisdiction. It may be searched by personal attendance at the Companies Court General Office, or by telephone on 020 7947 7328. See also section 20 (paragraph 20.19) of the Chancery Guide

The register was set up because there was a real danger of double issues of winding-up petitions occurring, primarily due to the fact that jurisdiction to issue such petitions is wide. The Registrars require to be informed of any prior petitions, interim orders or whether applications to set aside the statutory demands have been issued before making any decision on a current petition. Failure to do so could result in the petitioner being unable to claim petition costs [Note 5]. 


45.40 Presentation and filing of the petition

(Amended October 2010)

The petition is filed at the appropriate court with the statement of truth and deposit and with sufficient copies for service on the company (unless the company is the petitioner) and, where appropriate, for sending to:

a. the voluntary liquidator,

b. the administrator,

c. the administrative receiver,

d. the supervisor of a voluntary arrangement,

da. the member State liquidator (if appointed in main proceedings in      relation to the company),

e. the Financial Services Authority (if the company is an authorised deposit-taker or a former authorised deposit-taker and the FSA is not the petitioner)

The court fixes a date for the hearing and returns the sealed, endorsed copies to the petitioner [Note 6]. 


45.41 Service of the petition

A copy of the sealed petition is then served on the company at its registered office (or if it has been changed within the past 14 days, the petition may be served at the new registered office or the old) [Note 7] [Note 8].

Service at the registered office is effected by handing it to a person who, there and then, acknowledges himself to be or to the best of the server’s knowledge, information and belief is a director, officer or employee of the company, or to a person who acknowledges himself to be authorised to accept service of documents on behalf of the company. If there is no one available to accept service, the petition may be deposited at or about the registered office in such a way that it is likely to come to the notice of a person attending at the office [Note 9]. 


45.42 Service on unregistered companies or where service at registered office not practicable

If service of the petition at the registered office is not practicable or the company has no registered office or is an unregistered company, service may be effected by leaving the petition at the company’s (last known) principal place of business or by delivering it to the secretary or some director, manager or principal officer of the company [Note 10]. 


45.43 Service on Overseas Company

Service may be effected as provided in section 1139(2) of the Companies Act 2006 [Note 11]. 


45.44 Service other than personal service

(Amended October 2010)

If service as described above is impracticable, the court will direct the method to be used [Note 12]. Application for directions can be made by the petitioner without notice to any other party, supported by a witness statement stating what steps have been taken to effect service and the reasons why service as provided for in the rules is impracticable [Note 13]. 


45.45 After service has been effected

(Amended October 2010)

Immediately after service, the petitioner must provide evidence of service to the court.

In cases where the petition was presented before 6 April 2010 the petitioner had to file at court an affidavit detailing the manner of service together with a sealed copy of the petition and a copy of the order for substituted service, if appropriate [Note 14].

For post 6 April 2010 petition cases service of the petition must be proved by a certificate of service verified by a statement of truth [Note 15]. The certificate of service must be filed in court as soon as reasonably practicable after service, in any event not less than 5 business day before the hearing of the petition. Where substituted service has been ordered, the certificate of service must have attached to it a sealed copy of the order. The certificate must be sufficient to identify the petition served and must specify [Note 16]:

a. the name and registered number of the company,

b. the address of the registered office of the company,

c. the name of the petitioner,

d. the court in which the petition was filed and the court reference number,

e. the date of the petition,

f. whether the copy served was a sealed copy,

g. the date on which service was effected, and

h. the manner in which service was effected.

Where applicable, sealed copies of the petition should be sent by the petitioner to the persons listed at paragraph 45.40 on the business day after the company has been served [Note 17]. 


45.46 Publishing notice of the petition

(Amended April 2009)

Unless the court otherwise directs notice of the petition must be published in the "London Gazette" so as to appear (if the company is the petitioner) no less than 7 business days before the hearing or (where someone other than the company is the petitioner) no less than 7 business days after the petition was served on the company nor less than 7 business days before the hearing. Where advertisement of the petition in the Gazette is not reasonably practicable, the court may direct that instead of the notice being gazetted, it shall be given in such other manner as the court thinks fit [Note 18].

The 7 day delay allows the company to pay the debt if it does not dispute it or, if the debt is disputed, it gives the company time to apply to court for an order restraining the advertisement [Note 19]. 


45.47 Meaning of business days

(Amended October 2010)

For the purposes of service and publishing of the petition, ’business day’  is defined by the Rules as any day other than a Saturday, a Sunday, Christmas Day, Good Friday or a day which is a bank holiday in any part of England and Wales under or by virtue of the Banking and Financial Dealings Act 1971 [Note 20]. 


45.48 Details to be in the published notice of the petition

(Amended October 2010)

The published notice of the petition (see paragraph 45.46) must be headed up with the title of the proceedings and must contain the name of the company and the address at which service of the petition was effected, the name and address of the petitioner, the date on which the petition was presented and the venue for the hearing together with the name and address of the petitioner’s solicitor. It must also inform persons who wish to attend the hearing that they need to give notice to the petitioner of their intention to do so [Note 21] [Note 22] [Note 23] [Note 24]. The petitioner must furnish the court on the day of the hearing with a list of such people specifying their names and addresses, solicitors (if known) and whether their intention is to oppose or support the petition [Note 25] [Note 26]. 

Post 6 April 2010 petition cases:

In cases where the petition was presented after 6 April 2010, the amended rules specify standard contents for all gazette notices or other advertisements [Note 27]. When notice of the presentation of a petition is published, the gazette notice or advertisement must also contain further specified contents as follows [Note 21]:

  1. that a petition has been presented for the winding up of the company;
  2. in the case of an overseas company, the address at which service of the petition was effected;
  3. the name and address of the petitioner;
  4. the date on which the petition was presented;
  5. the venue fixed for the hearing of the petition;
  6. the name and address of the petitioner’s solicitor (if any); and
  7. that any person intending to appear at the hearing (whether to support or oppose the petition) must give notice of that intention in accordance with Rule 4.16. 


45.49 What is an advertisement

The word "advertised" has two meanings:

1. a paid announcement in a general publication, and

2. notifying the existence of the matter in question.

Where the court has made an order restraining the advertisement of a winding-up petition, the word advertised is to be construed in a wide sense, and any communication to an unauthorised party (e.g. informing the company’s bank) of the presentation of the petition will be a breach of the order [Note 28]. But in rules 4.11 and 4.14 the word refers to publication in the Gazette and a notification to a third party of the petition will not in itself be a breach of rules 4.11 or 4.14, although it may be an abuse of the court if made for an improper purpose e.g. putting pressure on the company [Note 29]. If so, the petition may be struck out for this reason [Note 30]. 


45.50 Persons entitled to a copy of the petition

(Amended October 2010)

Every director, contributory or creditor of the company is entitled to a copy of the petition from the petitioner or solicitor within 2 business days of asking (2 days for pre 6 April 2010 petition cases) [Note 31]. 


45.51 Certificate of compliance

(Amended October 2010)

The petitioner must file at court, at least 5 business days before the hearing (5 days for pre 6 April 2010 petition cases), a certificate stating that the rules have been complied with in regard to service and publication of the notice of the petition together with a copy of the gazetted notice. Failure to comply may result in the dismissal of the petition [Note 32]. 


45.52 Withdrawal of petitioner

(Amended October 2010)

Not less than 5 business days before the hearing the petitioner may withdraw the petition on an application without notice to any other party (5 days for pre 6 April 2010 petition cases) [Note 33]. The court must be satisfied that the petition has not been advertised, that the company consents to the withdrawal and that the petitioner has received no notices in connection with the petition [Note 34]. 


45.53 Witness statement in opposition

(Amended October 2010)

If the company intends to oppose the petition, it must file with the court a witness statement in opposition no less than 5 business days before the hearing (7 days for pre 6 April 2010 petition cases). It must then send a copy to the petitioner as soon as reasonably practicable [Note 35]. 


45.54 Dismissing the petition

(Amended April 2009)

Because of the serious nature of the proceedings, courts are particularly strict on adherence to the rules with regard to the contents, service and publishing of notice of the petition. If the petition is not published in accordance with the rules, the court may dismiss the petition or order the petitioner to bear part of his costs [Note 36]. It should be noted, however, that the wording of rule 4.11(6) gives the court discretion in this matter and formal defects will not necessarily invalidate the proceedings if the court is not satisfied that the irregularity causes substantial injustice or the petitioner is faultless [Note 37].

Dismissal of the petition is most likely to happen if it is considered that non-compliance with the rules on service has been an abuse of the court system [Note 38]. If the failure to comply with service requirements is not the fault of the petitioning creditor and the company has not been prejudiced by the non-compliance, it is unlikely that the court will dismiss the petition [Note 39].

If the petition is dismissed, the petitioner is required unless the court otherwise directs, as soon as is reasonably practicable, to publish notice of the dismissal in the Gazette, or to advertise in accordance with any directions of the court [Note 40].  


45.55 Petitioner owes no duty of care

Courts consider that an application to dismiss the petition is the most appropriate method of dealing with defective service and any action for negligence by the company against the petitioner would fail because the petitioner owes no duty of care to the company [Note 41]. 


45.56 Petition by contributory

(Amended April 2009)

The procedure to be followed on a contributory’s petition is generally the same as that for other petitions as described above. However, directions from the court regarding the service, publishing and hearing of the petition must be sought in every case [Note 42].



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