Personal Insolvency Practice: Litigation, Procedure and Precedents 3rd ed

Now in its third edition, Personal Insolvency Practice is an indispensable guide to the most common personal insolvency applications for solicitors and barristers. Updated to take account of EX50A Guidance on Court Fees 2022 and Chancery Guide 2022, the book provides the busy practitioner with a comprehensive range of useful precedents and checklists, and sets out the key statutory and practice material for each application. The book provides practitioners with answers to questions such as:

• What form do I use?
• What fee do I pay?
• What does my evidence need to cover?
• Which court should I file at? • Who do I need to serve?
• What will the judge be looking for?

This edition also contains new precedents for claims under section 423, Insolvency Act 1986 in the wake of Moffat v Moffat [2021] BPIR 1309 and Manolete Partners v Hayward & Barrett Holdings [2021] BPIR 427.

table of content

Foreword to the Third Edition

Table of Cases

Table of Statutes

Table of Statutory Instruments

Table of Practice Directions and Practice Notes

Table of International Material

Table of Forms and Guides

 

 

1. STATUTORY DEMAND

Objective

Statutory form

Service

Evidence

Notes

Key materials

Section 268 of the Insolvency Act 1986

Rules 10.1–10.3 of the Insolvency (England and Wales) Rules 2016

Precedents

1.1 Creditor’s statutory demand

1.2 Certificate of personal service

 

 

2. APPLICATION TO SET ASIDE A STATUTORY DEMAND

Objective

Application

Court fees

Time limit

Evidence

Key materials

Rules 10.4 and 10.5 of the Insolvency (England and Wales) Rules 2016

Precedent

2.1 Application to set aside a statutory demand

 

 

3. CREDITOR’S BANKRUPTCY PETITION

Objective

Expediting the petition and the hearing

Petition

Evidence

Court fees

Service

Hearing

Withdrawal or dismissal

Key materials

Sections 264–271 of the Insolvency Act 1986

Rules 10.6–10.17, 10.20–10.26 and 10.30 of the Insolvency (England and Wales) Rules 2016

Precedents

3.1 Bankruptcy petition

3.2 Witness statement verifying the bankruptcy petition

3.3 List of appearances

3.4 Certificate of continuing debt

 

 

4. RESPONDING TO A CREDITOR’S PETITION: NOTICE TO ATTEND AT THE HEARING OF A PETITION

Objective

Notice of intention to appear

Court fees

Service

Key materials

Rules 10.17–10.19, 10.27 and 10.29–10.30 of the Insolvency (England and Wales) Rules 2016

Precedents

4.1 Notice by debtor of intention to oppose bankruptcy petition

4.2 Witness statement in opposition to the petition for bankruptcy

 

 

5. RESPONDING TO A PETITION: APPLICATION FOR A VALIDATION ORDER

Objective

Application

Court fees

Evidence

Service

Key materials

Section 284 of the Insolvency Act 1986

Paragraph 14.8 of the CPR Practice Direction – Insolvency Proceedings

Precedents

5.1 Ordinary application for a validation order pursuant to section 284 of the Insolvency Act 1986

5.2 Draft validation order

5.3 Debtor’s witness statement in support of an application for a validation order

5.4 Accountant’s witness statement in support of an application for a validation order

 

 

6. APPLICATION TO ANNUL A BANKRUPTCY ORDER

Objective

Application

Court fees

Evidence

Service

Report by trustee

Applicant’s claim that remuneration is or expenses are excessive

Hearing

Key materials

Sections 261 and 282 of the Insolvency Act 1986

Rules 10.132–10.141 of the Insolvency (England and Wales) Rules 2016

Precedents

6.1 Application for annulment under section 282(1)(b) of the Insolvency Act 1986

6.2 Draft order for annulment under section 282(1)(b) of the Insolvency Act 1986

6.3 Witness statement in support of an application for annulment under section 282(1)(b) of the Insolvency Act 198

 

 

7. APPLICATION TO RESCIND A BANKRUPTCY ORDER

Objective

Application

Court fees

Evidence

Service

Key materials

Section 375 of the Insolvency Act 1986

Precedents

7.1 Application for rescission under section 375 of the Insolvency Act 1986

7.2 Draft order for rescission under section 375 of the Insolvency Act 1986

7.3 Witness statement in support of an application for rescission under section 375 of the Insolvency Act 1986

 

 

8. APPLICATION FOR PERMISSION TO ACT AS A DIRECTOR OF A COMPANY NOTWITHSTANDING BANKRUPTCY

Objective

Application

Court fees

Evidence

Service

Official Receiver’s report

Hearing

Key materials

Section 11 of the Company Directors Disqualification Act 1986

Rules 9.25–9.27 of the Insolvency (England and Wales) Rules 2016

Precedents

8.1 Application for permission under section 11 of the Company Directors Disqualification Act 1986

8.2 Draft order for permission under section 11 of the Company Directors Disqualification Act 1986

8.3 Witness statement in support of an application for permission under section 11 of the Company Directors Disqualification Act 1986

 

 

9. APPLICATION FOR DIRECTIONS BY A TRUSTEE IN BANKRUPTCY

Objective

Application

Court fees

Evidence

Service

First hearing

Key materials

Section 303(2) of the Insolvency Act 1986

Precedents

9.1 Ordinary application for directions by the trustee in bankruptcy

9.2 Witness statement in support of an application for directions

9.3 Order on the trustee’s application for directions

 

 

10. APPLICATION TO APPOINT AN INTERIM RECEIVER

Objective

Application

Court fees

Evidence

Service

Hearing

Key materials

Section 286 of the Insolvency Act 1986

Rules 10.49–10.54 of the Insolvency (England and Wales) Rules 2016

Precedents

10.1 Application for the appointment of an interim receiver

10.2 Witness statement in support of an application for an interim receiver

10.3 Draft order appointing an interim receiver

 

 

11. APPLICATION FOR COMPENSATION AGAINST A TRUSTEE IN BANKRUPTCY

Objective

Application

Court fees

Evidence

Service

First hearing

Key materials

Section 304 of the Insolvency Act 1986

Precedents

11.1 Application for compensation against a trustee in bankruptcy

11.2 Witness statement in support of an application for compensation against a trustee in bankruptcy

11.3 Declaration that there has been a breach of duty by a trustee in bankruptcy

 

 

12. APPLICATION FOR AN ORDER FOR THE SALE OF THE BANKRUPT’S HOME

Objective

Application

Court fees

Evidence

First hearing

Service

Key materials

Sections 283A, 313A, 335A, 336, 337 and 338 of the Insolvency Act 1986

Rules 10.121–10.124 and 10.167–10.170 of the Insolvency (England and Wales) Rules 2016

Precedents

12.1 Application for a declaration of interest and order for sale of the bankrupt’s matrimonial home

12.2 Witness statement in support of an application for a declaration of interest in and order for sale of the bankrupt’s matrimonial home

12.3 Declaration of interest and order for sale of the bankrupt’s matrimonial home

 

 

13. APPLICATION FOR AN INTERIM ORDER IN SUPPORT OF AN INDIVIDUAL VOLUNTARY ARRANGEMENT

Objective

Application

Court fees

Evidence

Service

Steps following the making of an interim order

Further directions

Key materials

Sections 252–256 of the Insolvency Act 1986

Rules 8.8–8.18 of the Insolvency (England and Wales) Rules 2016

Precedents

13.1 Ordinary application for an interim order

13.2 Witness statement in support of an application for an interim order

13.3 Interim order of court under section 252 of the Insolvency Act 1986

 

 

14. APPLICATION FOR LEAVE TO ENFORCE SECURITY OR SEEK POSSESSION DESPITE AN INTERIM ORDER

Objective

Application

Court fees

Evidence

Service

Key materials

Section 254 of the Insolvency Act 1986

Precedents

14.1 Ordinary application for permission to enforce security despite an interim order

14.2 Witness statement in support of an application for permission to enforce security despite an interim order

14.3 Order for permission to enforce security despite an interim order

 

 

15. APPLICATION TO CHALLENGE DECISIONS MADE BY A MEETING FOR AN INDIVIDUAL VOLUNTARY ARRANGEMENT

Objective

Application

Court fees

Evidence

Service

Key materials

Sections 262–262B of the Insolvency Act 1986

Rules 8.22–8.24 of the Insolvency (England and Wales) Rules 2016

Precedents

15.1 Application for an order revoking a decision made by the creditors’ meeting in an individual voluntary arrangement

15.2 Witness statement in support of an application for an order revoking a decision made by the creditors’ meeting in an individual voluntary arrangement

15.3 Draft order revoking a decision made by the creditors’ meeting in an individual voluntary arrangement

 

 

16. APPLICATION TO CHALLENGE DECISIONS IN RESPECT OF A DEBT RELIEF ORDER

Overview

Application

Court fees

Evidence

Service

Key materials

Sections 251M and 251X of the Insolvency Act 1986

Rules 9.14 and 9.21–9.22 of the Insolvency (England and Wales) Rules 2016

Precedents

16.1 Ordinary application for an order revoking a debt relief order

16.2 Witness statement in support of an application for an order revoking a debt relief order

16.3 Draft order revoking a debt relief order

 

 

17. APPLICATION FOR AN INCOME PAYMENT ORDER

Objective

Application

Court fees

Evidence

Service

Key materials

Sections 310–310A of the Insolvency Act 1986

Rules 10.109–10.114 of the Insolvency (England and Wales) Rules 2016

Precedents

17.1 Application for an income payment order pursuant to section 310 of the Insolvency Act 1986

17.2 Witness statement in support of an application for an income payment order

17.3 Income payment order

 

 

18. APPLICATION FOR A PRIVATE EXAMINATION