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


ISBN13: 9780854903016
Previous Edition ISBN: 9780854902330
Published: July 2023
Publisher: Wildy, Simmonds and Hill Publishing
Country of Publication: UK
Format: Hardback
Price: £125.00



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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.

Subjects:
Insolvency Law, Wildy, Simmonds and Hill
Contents:
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
Objective
Application
Court fees
Service
Witness statement
First hearing
Return date
Warrant for arrest
Key materials
Sections 366–369 of the Insolvency Act 1986
Rules 12.17–12.22 of the Insolvency (England and Wales) Rules 2016
Precedents
18.1 Letter requesting documents before an application is made for a private examination
18.2 Application for a private examination
18.3 Witness statement in support of an application for a private examination
18.4 Order for private examination
18.5 Warrant for the arrest of the examinee on his failure to attend a private examination

19. APPLICATION FOR A DECLARATION THAT A TRANSACTION IS INVALIDATED BY VIRTUE OF SECTION 284 OF THE INSOLVENCY ACT 1986
Objective
Application
Court fees
Evidence
Service
First hearing
Key materials
Section 284 of the Insolvency Act 1986
Precedents
19.1 Application for a declaration of invalidity of a transfer pursuant to section 284 of the Insolvency Act 1986
19.2 Witness statement for a declaration that the transaction is invalidated by section 284 of the Insolvency Act 1986
19.3 Declaration that a transaction is invalidated pursuant to section 284 of the Insolvency Act 1986

20. APPLICATION TO SET ASIDE A TRANSACTION AT AN UNDERVALUE
Objective
Application
Court fees
Evidence
Service
First hearing
Key materials
Sections 339, 341–342 and 435 of the Insolvency Act 1986
Precedents
20.1 Application for a declaration that a payment is a transaction at an undervalue pursuant to section 339 of the Insolvency Act 1986
20.2 Witness statement to set aside a transaction at an undervalue pursuant to section 339 of the Insolvency Act 1986
20.3 Declaration that a payment is a transaction at an undervalue pursuant to section 339 of the Insolvency Act 1986

21. APPLICATION TO SET ASIDE A PREFERENCE
Objective
Application
Court fees
Evidence
Service
First hearing
Key materials
Sections 340–342 and 435 of the Insolvency Act 1986
Precedents
21.1 Application for a declaration of a preference pursuant to section 340 of the Insolvency Act 1986
21.2 Witness statement for a declaration of a preference pursuant to section 340 of the Insolvency Act 1986
21.3 Declaration of a preference pursuant to section 340 of the Insolvency Act 1986

22. APPLICATION TO SET ASIDE A TRANSACTION DEFRAUDING CREDITORS
Objective
Claim
Court fees
Evidence
Key materials
Sections 423–425 of the Insolvency Act 1986
Precedents
22.1 Claim for a declaration that a payment is a transaction defrauding creditors pursuant to section 423 of the Insolvency Act 1986
22.2 Particulars of claim in support of a claim to set aside a fraudulent transaction pursuant to section 423 of the Insolvency Act 1986
22.3 Witness statement to set aside a fraudulent transaction pursuant to section 423 of the Insolvency Act 1986
22.4 Declaration that a payment is a transaction defrauding creditors pursuant to section 423 of the Insolvency Act 1986

23. APPEAL
Objective
Appeal notice
Court fees
Service
Respondent’s notice
Appeal bundle
Time limits
Key materials
Part Four of the CPR Practice Direction – Insolvency Proceedings
Rules 12.58 and 12.61 of the Insolvency (England and Wales) Rules 2016
Schedule 10 to the Insolvency (England and Wales) Rules 2016

24. TOOLKIT
Issuing proceedings in the Royal Courts of Justice
Courts Electronic Filing – CE-File
County court or High Court?
Insolvency and Companies Court judge or High Court judge?
Urgent applications
Evidence
Bundles
Time estimates
Skeleton arguments
Useful email addresses
The Royal Courts of Justice
The County Court at Central London
Court dress
Court fees
Key materials
Rules 1.5, 1.6, 1.35, 10.11 and 12.5 of the Insolvency (England and Wales) Rules 2016
Schedule 4 to the Insolvency (England and Wales) Rules 2016
Schedule 5 to the Insolvency (England and Wales) Rules 2016
Schedule 6 to the Insolvency (England and Wales) Rules 2016
Parts One and Three of the CPR Practice Direction – Insolvency Proceedings
Precedents
24.1 Blank application form
24.2 Certificate of urgency
24.3 Bankruptcy petition on default of a voluntary arrangement
24.4 Creditor’s bankruptcy petition on failure to comply with a statutory demand for a liquidated sum payable at a future date
24.5 Creditor’s bankruptcy petition on failure to comply with a statutory demand for a liquidated sum payable immediately
24.6 Creditor’s bankruptcy petition where execution or other process on a judgment has been returned in whole or part
24.7 Debtor’s notice of opposition
24.8 List of appearances
24.9 Notice of persons intending to appear
24.10 Statutory demand under section 268(1)(a) of the Insolvency Act 1986. Debt for liquidated sum payable immediately following a judgment or order of the court
24.11 Statutory demand for a liquidated sum
24.12 Statutory demand for a debt payable at a future date
24.13 Listing certificate for a non-attendance pre trial review

Index