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When Should a Creditor Consider Bankruptcy

This information details the process of making a person domiciled in England or Wales bankrupt.

We can advise you on the bankruptcy process, prepare the statutory demand, arrange for service by a process server, draft the petition and represent you at any subsequent court hearing.

For companies, please see our separate information on corporate insolvency.

In appropriate cases the threat of bankruptcy (by serving a statutory demand) or the laying a bankruptcy petition can be a swift and forceful method of debt collection. While bankruptcy may have lost much of its historic stigma, it still can have profound effects on the Debtor’s personal and business life.

Bankruptcy is not a step that should be taken lightly or where you wish to maintain a commercial relationship with the Debtor. It is not appropriate where the debt is disputed or security for the debt is held. Further where the Debtor is truly impecunious, proceeding to bankruptcy may just leave you as one of many unsecured creditors.

Bankruptcy can also be considered where the Debtor may be hiding assets to avoid judgment. The Official Receiver or Trustee in Bankruptcy has extensive powers to investigate the Debtor’s accounts backed up by criminal sanctions.


The Statutory Demand

When to serve a statutory demand

Debt must equal or exceed bankruptcy level
Currently £750

Be a liquidated sum
A sum payable either immediately or at some certain future time and unsecured (you cannot petition for bankruptcy where you hold security)

Not be disputed on substantial grounds

Debtor unable to pay
Debt which Debtor appears either unable to pay or has no reasonable prospect of being able to pay

Before issuing a bankruptcy petition at court, the creditor must prove to the court that the Debtor is unable to pay their debts. This is usually achieved by serving a Statutory Demand on the Debtor.

This is a prescribed form which sets out the terms of the debt and advises the Debtor that a bankruptcy petition may be served.

The Debtor has 21 clear days from the date of service to comply with the Statutory Demand by either paying the debt or within 18 days applying to set it aside. Service of a statutory demand is often sufficient to secure a response.

Save in exceptional circumstances a statutory demand must be personally served on the Debtor. Service is usually proved by way of witness statement or affidavit. We advise engaging a process server to effect service (this typically costs between £100 and £200).

 

Responding to a Statutory Demand

Debtor makes payment in full

Debtor accepts the debt and seeks to negotiate a settlement

Debtor ignores the demand
The creditor may proceed to issue the bankruptcy petition. If the Debtor only raises a valid dispute to the debt following the petition being issued, the court will likely order the creditor’s costs be paid due to the Debtor’s failure to respond to the statutory demand.

Debtor disputes the demand
If the demand is validly disputed, the creditor should withdraw the demand and can then proceed to commence a standard debt action in the County Court. If the demand is not withdrawn the creditor can apply to the court to set it aside (see below)


Application to Set Aside the Statutory Demand

The Debtor may apply to court to have the Statutory Demand set aside. The court can grant this application on a number of grounds:

  1. If the Debtor has a counterclaim or right of set off against the Creditor
  2. If the debt is disputed on substantial grounds
  3. If the Creditor holds sufficient security for the debt

If the statutory demand is set aside the Creditor is usually ordered to pay the Debtor’s costs.

 

The Petition

If the statutory demand is not set aside and the debt not satisfied the Creditor may proceed to petition the court for the Debtor’s bankruptcy.

Prior to filing the petition the creditor must carry out searches of the High Court, Central London County Court and the Debtor’s local court to check if there are any prior petitions. The cheapest and swiftest option is usually instruct a London agent to carry out in person the search of the London courts. The local court search can be conducted by post.

The sealed petition and accompanying documents must then be personally served on the Debtor. We again suggest engaging a process server for this.

Any substantial delay (over 4 months) between service of the statutory demand and the petition should be avoided and must be explained to the court.

The Petition must be accompanied by:

  1. A copy of the statutory demand
  2. The process server’s witness statement as to service of the demand
  3. A witness statement from the Creditor verifying that the contents of the petition are true.
  4. Court Fee of £280 and Official Receiver’s deposit of £750

 

Bankruptcy Hearing

The court will list the petition for a hearing on the first available date after 14 days. There will usually be some delay before the petition is heard. Once filed the petition may not be withdrawn without the court’s permission.

If the Debtor opposes the petition, he must file his grounds for doing so 7 days before the hearing. The Creditor files with the court on the day of the hearing a Certificate of Debt confirming that the debt has not been paid or compounded together with a list of creditors.

The bankruptcy order will not be made where:

  1. The Debtor has made an offer to secure or compound the debt
  2. The acceptance of that offer would have required the dismissal of the petition, and
  3. The offer has been unreasonably refused

It is not unusual for the Debtor to offer staged payments to avoid bankruptcy. Should these payments not be met, the matter can be brought back to court for the matter to be reconsidered.

Costs

Typical Disbursements

Statutory Demand
£100-200 Process Server to serve demand

Bankruptcy Petition
£100-200 Process Server to serve petition
£280 Court Issue fee
£750 Official Receiver’s Deposit (returned if order not made)
£100 Searches of Court Registers

Where the Bankruptcy Order is made and if the bankrupt has sufficient money, it is usual for the petitioning Creditor’s costs to be paid or a contribution ordered.

If the petition is dismissed the Creditor usually has to meet the Debtor’s costs.

 

Bankruptcy Order Made

Upon the bankruptcy order being made the majority of the Debtor’s assets vest in his trustee in bankruptcy.

Depending on the value of the Bankrupt’s assets, either a local insolvency practitioner or the Official Receiver will be appointed by the court as Trustee in Bankruptcy to investigate the Bankrupt’s affairs, sell their assets and distribute any proceeds to the creditors.

Obtaining Advice

Often triggered by the replacement of a hedge or fence, boundaries are a common source for disputes between neighbours.

There are numerous misconceptions among the legal profession, surveyors and the public as to where boundaries lie, which if not remedied at an early stage can lead to acrimony and protracted disputes.

We understand the often competing desire to protect your home against encroachment and the need to resolve matters in cost effective fashion. Disputes with neighbours must be revealed when a property is sold and will often devalue or even put off potential purchasers. It is crucial that disputes are handled carefully to protect your investment.

Our expertise lies not only in providing cogent advice on the legal basis for your boundary, but also resolving the dispute with your neighbour.

“I do not… accept that the days are gone when a party can litigate over a tiny strip of land, although I would certainly agree that it is usually economic madness so to do, but a person remains entitled in law to protect and preserve that which is his or hers.”

Judge Simon Barker QC in Acco Properties Ltd v Severn


Determining the Boundary

Determining where the boundary lies is not simply a question of drawing a straight line from the front of your property or checking the Land Registry plan. We can assist you in analysing the evidence to determine the boundary’s true location:

  1. Where possible, determine the original legal boundary from the deeds
  2. If not possible, consider other evidence such as topographical features on the land that existed when the land was divided such as hedgerows and fences.
  3. Consider whether the boundary has shifted either through an informal agreement or adverse possession


Locating the Original Legal Boundary

The original legal boundary for a property is determined by the deeds. The conveyance deed that divided the property may have measurements, a description of the boundary in question or “T” marks showing who owns a boundary feature.

The deeds however are not always available. Since registration at the Land Registry for all transfers of land was made compulsory in 2003, many mortgage companies who traditionally held the deeds of the property have disposed of them.

In the absence of other evidence, presumptions regarding the boundary can often be made from the facing of fences or the situation of hedges and ditches.


Moving the Boundary Line over Time

Informal Boundary Agreements

Transfers of land usually must be evidenced by signed deed. This does not always apply to trivial dispositions of land following an informal agreement between neighbours.

The history of the boundary and agreements made by neighbours or former neighbours, whether informally over the garden fence or formally in writing, can also have a bearing on the position of the boundary. In certain circumstances boundary agreements can even be inferred by the neighbours’ conduct.

Adverse Possession

The legal boundary can be altered by adverse possession, colloquially known as squatter’s rights. Where a person occupies their neighbours land without their permission, demonstrates that ownership (such as erecting fencing) with the necessary intention to exclude the true owner, the Land Registry may recognise their right to be registered as the owner.

This often applies in boundary disputes where a boundary has historically been moved from the original legal boundary and a number of years have passed. The position of the existing boundary and the length of time it has been there often becomes more relevant than the original legal boundary shown by the deeds.

Traditionally 12 years were required to establish adverse possession and this remains the case for unregistered land. The rules for adverse possession are complex and we can advise you if this applies.

Where a boundary is in dispute, it is important to bring certainty to the determination by proclaiming the boundary and not leaving the plot “fuzzy at the edges”

Judge Simon Barker QC in Acco Properties Ltd v Severn


Next Steps

Expert Evidence In most boundary disputes it will be necessary to engage the services of an expert surveyor; either to provide evidence of where the boundary should be or draw up detailed plans for any litigation or settlement. We can assist you in choosing a surveyor with expertise of boundary disputes.

Negotiation The court places strong emphasis on disputes being resolved by mediation, negotiation or by other alternative dispute resolution.

Remedies Where matters cannot be resolved a declaration can be sought from the court as to the true position of the boundary together with damages for trespass, these are often only nominal. Alternatively a determination of the boundary or adverse possession can be sought at the Land Registry.

Common Misconceptions

Land Registry Plan Unless previously determined this only indicates the general location of a boundary and cannot be relied upon for its accuracy.

The Ordnance Survey OS plans tend to mark features such as hedges and fences rather than legal boundaries. The scale means features may be out by as much as 2.3 metres.

Planning Permission The local planning board is only concerned with public planning issues not private law rights. It is possible to obtain planning permission over land which you do not own and the grant of permission does not have any bearing on the ownership of the land in question.

“An Ordnance Survey map on a scale of 1:2500 is worse than useless”

Lord Justice Cummin-Bruce in Scarfe v Adams.

The Duty of Disclosure

Disclosure of documents to your opponent is a key part of the litigation process. The duty of disclosure is strict and the courts take it very seriously. Broadly speaking parties are required to disclose to the opposing party the documents on which it relies, that adversely affect its case or another party's case, or that support another party's case.

The disclosure obligation in each case will depend on a number of factors, including the procedural "track" to which the case is allocated (for example, fast track or multi track) and whether electronic documents will have to be disclosed.

The usual order will be for what is known as standard disclosure. Under that procedure, the documents are usually disclosed by serving a list of documents on the opposing party. The underlying principle is that the court can only deal with the case justly if all of the relevant material is out in the open.

Since 1 April 2013, a new disclosure procedure has applied for multi track claims. The court will decide what is appropriate for the case from a menu of options. There is considerable flexibility. The court will make its order having in mind what is known as the "overriding objective" (which means dealing with cases justly and at proportionate cost) and the need to limit disclosure to what is necessary to deal justly with the case.

Parties are compelled to disclose to each other any damaging documents, as well as helpful ones. The disclosure process, therefore, forces parties to be realistic about their chances of success in the litigation and, for that reason, many disputes settle either shortly before or shortly after disclosure.


Do’s and Don’ts

Do not destroy any documents that might be relevant to the dispute. You have a duty to preserve disclosable documents, including electronic documents

Do not mark or annotate any existing documents that might be relevant to the dispute

Do not create any new documents that might have to be disclosed in the litigation

Do not ask any third parties to send you documents

Do not access, amend, delete or destroy any electronic documents that might be relevant to the dispute

Discuss with us first any documents that you propose to circulate internally


Disclosure in Multi - Track Cases

In substantive disputes the court may make an order for something other than standard disclosure if the case is allocated to the multi track. There is no set procedure in the rules where an order is made for something other than standard disclosure. Instead, the judge will give directions on how disclosure is to be given. It is likely, in such cases, that aspects of the standard disclosure procedure, such as the requirement for lists of documents, will be adopted.

In multi track cases, there are more onerous requirements on the parties in their preparation for disclosure. Each party must file and serve a disclosure report, not less than 14 days before the first case management conference (CMC). This report must:

  • Briefly describe matters such as the documents that exist that are (or may be) relevant to the matters in issue and where, and with whom, the documents are (or may be) located.
  • Describe how any electronic documents are stored.
  • Estimate the broad range of costs that could be involved in giving standard disclosure (including the costs of searching for and disclosing electronic documents).
  • State which type of disclosure order will be sought.

We will need to carefully consider what might be the most appropriate approach to disclosure to ensure that what is proposed is proportionate.

Not less than seven days before the first CMC, the parties must discuss, and seek to agree, a proposal for the disclosure exercise. In most cases, the court will make the disclosure order at that CMC.

It is important to be aware that the time periods specified in the rules are deadlines. It is likely that work preparing the disclosure report, and discussions with the opposing party (or parties), will have to start significantly earlier.

Costs

For the purposes of the disclosure report, it will be necessary to prepare an estimate of the broad range of costs that could be involved in giving standard disclosure (and whatever form of disclosure we propose for the case).

In some cases, it will also be necessary to provide a detailed budget for the costs of the case as a whole (including the costs of the disclosure exercise). This will be prepared based on the order for disclosure that we decide to propose.


The Disclosure Process

Duty to disclose documents, including electronic data

"Document" has a very wide meaning under the court rules. It includes all media in which information of any description is recorded, for example, tapes, computer records and e-mails, as well as paper.

The definition of a document also extends to electronic material that is not easily accessible, such as electronic documents stored on servers and back-up systems, and electronic documents that have been deleted. It also includes information stored and associated with electronic documents, known as metadata.

Duty to disclose documents that are, or have been, in the party's control

The parties are obliged to disclose helpful or damaging documents that are, or have been, in its control. "Control" also has a specific meaning under the court rules. It is not limited to documents that a party has (or previously had) in its possession. It also includes documents that the party has (or had) the legal right to possess, inspect or copy (for example, documents held by third party professional agents, such as other firms of solicitors, or accountants).

A party's obligation is to conduct a reasonable search for documents that are, or have been, in its control. A party is not obliged to carry out an exhaustive search for documents, sparing no expense and leaving no stone unturned.

The reasonable search

What constitutes a reasonable search will depend on the facts of each case, but there are certain factors that the court will apply when assessing the reasonableness of a search. These include:

  • Number of documents
  • Nature and complexity of the proceedings
  • Ease and expense of retrieval of any particular document
  • Significance of any document likely to be located during the search.

When determining the extent of the search for documents that is required in each case, the underlying principle is proportionality. Disclosure can be a costly aspect of the litigation. The court will be looking to manage the disclosure exercise so as to facilitate a just outcome, but with an eye to balancing the sums in issue with the cost of litigating. We will discuss how these principles apply to the present case, and the extent of the search required.

Dealing with electronic documents

Specific procedures apply for the disclosure of electronic documents (often referred to as e disclosure).

You should be aware, as soon as litigation is contemplated, of the need to preserve disclosable documents, including electronic documents that would otherwise be deleted in accordance with a document retention policy or in the ordinary course of business. It is essential for you to consider whether any standard document retention policies need to be suspended. Failure to comply with this could lead to the court drawing adverse inferences, for example, if any disclosable documents are destroyed.

The practicalities of the disclosure exercise and preparing a list of documents

The first stage is to determine the extent of the search for documents that will be required. The next step is to conduct the search. Once the documents have been located, we will review the materials and decide which documents must be disclosed. If lists are to be exchanged, we will then draft a list of the documents that are required to be disclosed.

The documents are usually listed in a prescribed court form. There are alternative options available for listing electronic documents. We will consider those options in more detail, once we have established whether there is likely to be a significant volume of electronic documents to disclose.

The disclosed documents will be described in the list of documents in one of the three sections:

  1. Relevant documents that the party currently has, and which their opponent may view or "inspect". These documents will be listed either individually or by category.
  2. Relevant documents that the party currently has, but which their opponent may not inspect, for example, privileged documents (see below). By convention, these documents are described generally.
  3. Relevant documents that the party has had, but no longer has. By convention, originals of documents that have been sent to third parties are described generally, but if there are documents likely to be relevant to the matter, that the party should have but does not have, these will need to be identified specifically.

Privilege

Litigation Privilege. Certain confidential communications made when litigation is likely or has begun, passing between a party and its legal advisers, a party and third parties (for example, potential witnesses) and, in certain circumstances, the legal advisers and third parties, where the main purpose of the communication is to seek or obtain evidence for use in the litigation, or to provide advice on the litigation.

Without Prejudice Privilege. Correspondence and other communications generated as part of a genuine attempt to settle an existing dispute.
Where documents are privileged, it is extremely important that you do not take any steps that might result in privilege being lost (or "waived"). This may occur if confidentiality in the material is lost. Therefore, please take care not to circulate any existing documents that might be relevant to the dispute

Confidential Documents

Unless a party has a right or duty to withhold inspection, it will not be able to prevent their opponent from seeing any documents that are required to be disclosed just because they are confidential. However, the court rules prevent a party that has acquired documents on disclosure from using those documents outside the litigation in which they are disclosed, except in certain circumstances: for example, if the court's permission is obtained.

If there are any commercially sensitive relevant documents that you do not want your opponent to see, we will need to consider whether and to what extent, we can ask the court to put in place specific protective measures. In limited circumstances, for example, it is possible to obtain an order that an opponent's legal advisers (but not the opponent) may inspect those documents.

The Disclosure Statement

The list of documents must contain a disclosure statement that is signed by the party (or in the case of a company a senior representative of the company who takes overall responsibility for the search for documents).

The disclosure statement must set out the extent of the search that has been made to locate documents that are required to be disclosed, and provide specific information regarding the search for electronic documents and the specific media searched.

The person signing the disclosure statement must certify that he understands the duty of disclosure and, to the best of his knowledge, has carried out the duty. He must expressly state that he believes that the extent of the search was reasonable in all the circumstances. This is a serious matter. Signing a disclosure statement without an honest belief that it is true carries the risk of proceedings for contempt of court and the penalty of imprisonment.

Obtaining Advice

We all rely on the professional advice we are given and feel understandably disappointed when a professional has let us down. Claims against professionals are increasingly prevalent.

Whether your claim is against a surveyor, solicitor, accountant, IT provider or another professional, we can help you through the sometimes complex area of pursuing a professional whose advice or assistance falls below a reasonable standard.


Do I have a Claim?

Duty of Care

The professional must owe you a duty of care. This is often easy to prove where there is a contract between you and the professional.

Breach of that Duty

A professional will be in breach of their duty to you where they fail to exercise reasonable care and skill. Their advice or assistance will be judged against the standard of a reasonably competent professional in their field.

Loss as a result of that breach

Lastly we must show that you have suffered a financial loss as a result of the breach of duty. You have a duty to mitigate any losses.

Time Limits

The time limit for bringing most professional negligence claims is 6 years, though shorter and longer periods may apply.


The Process

It is important to obtain legal advice early on in any dispute. It may be possible to prevent matters from escalating further and protect your position.

We will initially meet with you to advise you on prospects for success and make sure your complaint is taken seriously. We will discuss your concerns about the professional advice or assistance you have received, what expert evidence may be needed, funding options, tactics and most importantly your aims.

The court have a specific pre action protocol detailing the steps that should usually be undertaken before court proceedings are commenced.

The lime limits can be lengthened or shortened depending on the nature of dispute and the evidence available. The usual process is as follows:

Preliminary Notice of Claim

Depending on the nature of the claim and area of the professional’s expertise, detailed investigations are often necessary before full details of the dispute can be set out. The preliminary notice of claim provides a brief outline of the grievance against the professional and states that their insurer should be notified. This step is often missed out where there is sufficient information to send the letter of claim straight away.

Letter of Claim

This sets out in detail the basis of the claim against the professional with supporting disclosure and evidence. The letter must also detail what sum of money or other remedy is sought.

The professional should provide acknowledgement, but not a full response, within 21 days.

Professional’s Letter of Response

The protocol provides the professional 3 months from the letter of claim to investigate and provide a detailed response. This should set out whether the claim is accepted or not.

Alternative Dispute Resolution

In appropriate cases, the parties are expected to spend a further 3 month period negotiating or trying to settle the dispute by alternative means. Please see our leaflet on Settling a Dispute for more details.

Issue Proceedings at Court

Should the professional deny the claim or negotiations prove fruitless, the dispute will have to be resolved by the court. Please see our leaflet on Court Claims for more detail.

We provide advice upon:

  • debt collection
  • bankruptcy
  • corporate insolvency
  • enforcement

Further Information

Debt Collection - Bankruptcy: View Online pdf Download PDF

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