Statutory Demand in UK Law

Leading Cases
  • Debtor (No. 1 of 1987), Re A
    • Court of Appeal (Civil Division)
    • 16 Enero 1989

    That consequence, in turn, founds the ability of the creditor to present a bankruptcy petition because, under Section 268 (1), in the absence of an unsatisfied return to execution or other process a debtor's inability to pay the debt in question is established if, but only if, the appropriate statutory demand has been served and not complied with.

    When therefore the rules provide, as does Rule 6.5 (4) (d), for the court to have a residual discretion to set aside a statutory demand, the circumstances which normally will be required before a court can be satisfied that the demand "ought" to "be set aside, are circumstances which would make it unjust for the statutory demand to give rise to those consequences in the particular case. The court's intervention is called for to prevent that injustice.

    The Court will exercise its discretion on whether or not to set aside a statutory demand, having regard to all the circumstances. There will be other cases where, despite such defects in the contents of the statutory demand, those defects have not prejudiced and will not prejudice the debtor in any way, and to set aside the demand in such a case would serve no useful purpose.

  • John Remblance v Octagon Assets Ltd
    • Court of Appeal (Civil Division)
    • 17 Junio 2009

    There may be circumstances where the principal debtor's ability to pay is a relevant factor. But as Nicholls LJ said, the theme running through rule 6.5(4) is that a statutory demand will be set aside where it is just to do so. In my judgment, it is difficult to see how it can be just not to set aside a demand where the principal debtor satisfies one of the conditions in sub-paragraph (a) merely because he can afford to pay the debt.

    It has not been suggested (rightly in my view) that, even where the principal debtor appears to have a bona fide arguable counterclaim, set-off or cross demand, an application to set aside a statutory demand under sub-paragraph (a) should be dismissed because he has the means to pay the debt that he owes to the creditor.

  • Re A Debtor (Nos. 49 and 50 of 1992)
    • Court of Appeal (Civil Division)
    • 21 Abril 1994

    The only purpose in doing so would be for this demand to form the foundation for a bankruptcy petition. That being so, the very presentation of a petition would be oppressive and an abuse of process. Accordingly, at the earlier stage of the statutory demand the court should intervene. When able to foresee the inevitable the court will always intervene summarily to anticipate it. The court does not countenance parties proceeding to a blank wall.

  • Re Bayoil SA
    • Court of Appeal (Civil Division)
    • 31 Julio 1998

    The ability of a petitioning creditor to levy execution against the company does not entitle him to have it wound up. I emphasise that the cross claim must be genuine and serious or, if you prefer, one of substance; that it must be one which the company has been unable to litigate; and that it must be in an amount exceeding the amount of the petitioner's debt.

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Legislation
  • The Insolvency (England and Wales) Rules 2016
    • UK Non-devolved
    • 1 de Enero de 2016
    ... ... (2) However this rule does not apply to the required content of a statutory demand on a company set out in rule 7.3 and on an individual set out in ... ...
  • Insolvency Rules 1986
    • UK Non-devolved
    • 1 de Enero de 1986
    ... STATUTORY INSTRUMENTS ... 1986 No. 1925 ... INSOLVENCY ... COMPANIES, ... 4.3. Time-limits ... CHAPTER 2 ... THE STATUTORY DEMAND ... (NO CVL APPLICATION) ... 4.4. Preliminary ... 4.5. Form and ... ...
  • Insolvency Act 1986
    • UK Non-devolved
    • 1 de Enero de 1986
    ... ... (7) A statutory instrument containing regulations under subsection (2) may not be made ... —(a) the expiry of a period of 21 days after the making of a demand for payment of the whole or any part of the principal sum secured by the ... ...
  • Insolvent Partnerships Order 1994
    • UK Non-devolved
    • 1 de Enero de 1994
    ... UNITED KINGDOM STATUTORY INSTRUMENT ... 1994 No. 2421 ... INSOLVENCY ... The Insolvent ... -up or bankruptcy proceedings are pending if a statutory or written demand has been served or a winding-up or bankruptcy petition has been presented ... ...
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