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LPC Law Notes Commercial Dispute Resolution Notes

Tactics Of Insolvency Procedures And Interim Applications Notes

Updated Tactics Of Insolvency Procedures And Interim Applications Notes

Commercial Dispute Resolution Notes

Commercial Dispute Resolution

Approximately 305 pages

A collection of the best Commercial Dispute Resolution notes the director of Oxbridge Notes (an Oxford law graduate) could find after combing through dozens of LPC samples from outstanding students with the highest results in England and carefully evaluating each on accuracy, formatting, logical structure, spelling/grammar, conciseness and "wow-factor". In short these are what we believe to be the strongest set of Commercial Dispute Resolution notes available in the UK this year. This collection ...

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Tactics of Insolvency Procedures and Interim Applications

When to use insolvency procedure

Explain procedure which must be adopted to make an individual insolvent and to compulsorily wind up a company

Disadvantage of litigation

  • Could take weeks or months to obtain judgment

  • Cost unlikely to be recovered in full

  • Entering judgment does not guarantee payment

  • Judgments can be ignored

  • Litigation is stayed if debtor becomes bankrupt/ is wound up and client ranks as unsecured creditor

Personal Insolvency Corporate Insolvency
Initiating

Statutory Demand

s.267 IA 1968

owed more than 750

liquidated sum

debtor appears unable to pay or there is no reasonable prospect of being able to pay

R6 IR 1986

  • Don’t need statutory demand can just write a letter saying co can’t pay debts as fall due and threatening winding up proceedings

When it can be used?

s.268 – statutory demand served and debtor failed to comply

judgment obtained against debtor, creditor has attempted to enforced the judgment and remains wholly or partially unsatisfied

S.122(f) company unable to pay debts

S.123 above shown if

  • Statutory demand unpaid

  • Judgment and enforcement unsatisfied

  • Co unable to pay debts as fall due

  • Value of co assets less than liability

Debt must be 750 or more and at least 750 undisputed

Docs & Service?

Must do all that reasonable to bring statutory demand to attention of Debtor

R 6.1 must do what’s reasonable to bring to debtor’s attention (ie personal service)

R6.3 – personal service

Recorded delivery/personal service are best

Use prescribed Form 4.1

IR 4.8 served at registered office or director, officer, employee, someone authorised to accept service, leaving it so likely to come to the attention of someone attending there effect on debtor

  • Use personal service or recorded service as easier to prove proper service

Effect on debtor

If unpaid for 21 days (starting day after service) then can petition for Debtor bankruptcy provided debtor doesn’t apply to set it aside.

Debtor can apply to have set aside within 18 days.

Have 21 days to pay (if don’t, deemed unable to pay s.123(1)(a) IA 1986

Ground for presenting winding up petition

Advantage for creditor

Inexpensive, relatively quick – more likely to initiate response/payment

Quicker than court proceedings IF Debtor pays without having to petition for bankruptcy

Inexpensive process, threat of bankruptcy usually means likely to get paid

Effect of winding up petition under s 127 IA 1986 any disposition of property will be void unless court orders otherwise’ which means company cannot trade without ‘validation’ order

Will constitute an event of default which will trigger default of other finance agreements

Risk to Claimant Debtor can’t pay and goes bankrupt – Creditor becomes unsecured creditor and will get little or no money If they rank as unsecured creditor may only get a proportion or money owed or nothing at all
Other

Debtor can apply to have the demand set aside:

  1. Counterclaim, set-off or cross demand which equals or exceeds the debt

  2. Debt is disputed on substantial grounds

  3. Creditor holds some security in respect of debt which equals/exceeds full amount

  4. Court satisfied, on other grounds, that demand ought to be set aside.

Winding up petition:

Advertisement

Creditor to advertise petition in London Gazette 7 days after presentation + 7 days before hearing to alert other creditors

What can debtor do in response?

Apply for injunction to prevent advertising or presenting petition (if dispute on reasonable grounds)

What can creditors do?

Support or take over winding up petition

Risk: becomes public, other creditors may join in.

If unsecured, may end up with little or nothing.

Options for client facing petition for bankruptcy

Advise a client who is faced with one of the above procedures on how debtor can respond and their options WS 9

Petition

Can request to set aside within 18 days of service

Use prescribed form plus affidavit

  1. Counterclaim, set off or cross demand which equals/exceeds the debt

  2. Debt is disputed on substantial grounds

  3. Creditor hols some security in respect of debt which equals/exceeds full amount

  4. Court satisfied, on other grounds, that demand ought to be set aside

No procedure to set aside demand as no demand BUT can apply injunction if petition would be an abuse of process

Tactical Steps where client is stalling/can pay/overdrawn

Select in a given situation, the tactical steps which you could take on behalf of a client and explain why these steps are appropriate

Reasons for debtor resisting claim D can pay but is stalling for time Debtor can’t pay full amount D doesn’t think they owe full amount and will resist paying D is overdrawn but director of D co gave personal guarantee
Advice to Claimant

Corporate insolvency

Undisputed amount of 750 or more,

Piper will WANT to pay, and they CAN pay.

They won’t they bad publicity/potential of going insolvent if they owe other creditors/ might make it difficult for them to trade/

Insolvency procedure takes time and costs money

Could affect their trade and will be unable to trade without order from the court.

Less time consuming and costly than claim form and summary judgment

Claim Form + Summary judgment

No defence with real prospect of success, Claimant gets a quick judgment, can take enforcement action and become a secured creditor (third party debt order on bank account and balance on charging order)

Don’t want to do use corporate insolvency as will tell other creditors that Debtor doesn’t have enough money to pay everyone

Risks: bankruptcy/winding up petition by another creditor – proceedings stayed and enforcement proceeding void and costs wasted

Claim Form + Interim payment

Disputed debt but at least 750 undisputed, best option to try and get some money while D and C argue/go to trial over full amount due

Must have met grounds under 7.1 a) that debtor has admitted to pay liability to pay damages.

(no reason...

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