Responding to a statutory demand: application to restrain the presentation of a petition
| Author | Mark Watson-Gandy |
| Pages | 53-63 |
OBJECTIVE
Given that there is no formal procedure to set aside a statutory demand presented against a company and the serious consequences of the presentation or advertisement of a petition against a company,
WARNING LETTER
Before an application is made for an injunction, a warning letter should be sent to the other side inviting them to give an undertaking not to present a winding up petition based upon it.
This should be sent in an open letter:
ƒ setting out why the debt is disputed;
ƒ stating that the threat of winding up proceedings is inappropriate;
ƒ requiring solicitor’s undertaking not to present and advertise the petition; ƒ requiring a solicitor’s undertaking to give 3 days’ notice prior to presenting the petition;
ƒ giving a costs warning.
The need for the costs warning arises because a wasted costs order may be made against a solicitor who presents a petition knowing it is bona fide contested and fails to advise his client that the petition is an abuse of process.
APPLICATION
If the letter fails to produce a reply or the requisite undertaking, then the company should apply on notice by application against the creditor to a High Court judge to restrain presentation of the winding up petition. The application can be made without notice if urgent. The application needs to be made to the court which has
54 Corporate Insolvency Practice
jurisdiction to wind up the company.
ƒ that the application is made under rule 7.24 of the Insolvency (England and Wales) Rules 2016;
ƒ the name of the court in which the application is made;
ƒ the case number;
ƒ the names of the parties;
ƒ the name of the company;
ƒ the company’s registered address;
ƒ if the company is incorporated in England and Wales:
– the company’s registered number;
ƒ if the company is incorporated outside the United Kingdom:
– the country in which it is incorporated;
– the company’s registered number in that country;
– its overseas registered company number under Part 34 of the Companies
Act 2006;
ƒ if the company is unincorporated in England and Wales:
– the company’s postal address;
ƒ the name of the office-holder;
ƒ the nature of the office-holder’s appointment, e.g. liquidator, administrator;
ƒ the nature of the remedy the court is being asked to grant
ƒ the names and addresses of the persons on whom the application will be served or on whom notice of the application will be given;
ƒ the address for service of the applicant.
COURT FEES
Where the application is made for determination by the court, a court fee of £155 is payable.
SERVICE
Copies of the application and evidence will need to be filed at court
Get this document and AI-powered insights with a free trial of vLex and Vincent AI
Get Started for FreeStart Your Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant
-
Access comprehensive legal content with no limitations across vLex's unparalleled global legal database
-
Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength
-
Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities
-
Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting
Start Your Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant
-
Access comprehensive legal content with no limitations across vLex's unparalleled global legal database
-
Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength
-
Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities
-
Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting
Start Your Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant
-
Access comprehensive legal content with no limitations across vLex's unparalleled global legal database
-
Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength
-
Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities
-
Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting
Start Your Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant
-
Access comprehensive legal content with no limitations across vLex's unparalleled global legal database
-
Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength
-
Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities
-
Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting
Start Your Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant
-
Access comprehensive legal content with no limitations across vLex's unparalleled global legal database
-
Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength
-
Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities
-
Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting