Areas for consideration when personally serving statutory demands for bankruptcy
The latest Practice Directions concerning Insolvency Proceedings came into force 24th April 2018. The Practice Direction contains procedural requirements relevant to all proceedings under The Insolvency (England and Wales) Rules 2016.
Governing Rules: Insolvency Rules 2016
How the document has come to be issued: The subject owes money to the Creditor. The value will be at least £5,000 in accordance with Insolvency requirements. Either
a) A Statutory Demand has been served upon the debtor which they have failed to comply with, or
b) A High Court Enforcement Officer has tried to recover the debt, but has returned the debt (as un-enforceable) to the creditor
The Creditor has provided evidence that one of the above has happened, and the Court have issued the Petition.
Timescales for Service: Deemed date of service must be at least 14 clear days before the hearing.
(Anything served after 16.30 hours Monday – Friday or at any time of the weekend is ‘deemed’ served on the following business day i.e. Monday)
What to point out to subject at point of service: The name of the Court and date and time of the hearing. Instruct the debtor to read the document in full and seek independent legal advice if anything is not clear.
Proof of Service required: Certificate of Service or Statement in Support of Substituted Service
Practice Directions: The latest Practice Directions concerning Insolvency Proceedings came into force 24th April 2018. The Practice Direction contains procedural requirements relevant to all proceedings under The Insolvency (England and Wales) Rules 2016.
Click here for 2018 Insolvency Practice Directions. See paragraph 12.7 concerning Bankruptcy Petitions.
Method of Service: Personal service must be effected.
Where personal service cannot be achieved, the client can apply for an Order allowing substituted service.
In most cases, evidence of the following steps will suffice to justify making an Order for Substituted Service of a petition:
(12.7.1) Where personal service of the bankruptcy petition is not practicable, service by other means may be permitted. In most cases, evidence that the steps set out in the following paragraphs have been taken will suffice to justify an order for service of a bankruptcy petition other than by personal service:
(1) One personal call at the residence and place of business of the debtor. Where it is known that the debtor has more than one residential or business addresses, personal calls should be made at all the addresses.
(2) Should the creditor fail to effect personal service, a letter should be written to the debtor referring to the call(s), the purpose of the same, and the failure to meet the debtor, adding that a further call will be made for the same purpose on the [day] of [month] 20[ ] at [ ] hours at [place]. Such letter may be sent by first class prepaid post or left at or delivered to the debtor’s address in such a way as it is reasonably likely to come to the debtor’s attention. At least two business days’ notice should be given of the appointment and copies of the letter sent to or left at all known addresses of the debtor. The appointment letter should also state that:
(a) in the event of the time and place not being convenient, the debtor should propose some other time and place reasonably convenient for the purpose;
(b) in the case of a statutory demand as suggested in paragraph 11.2 above, reference is being made to this paragraph for the purpose of service of a statutory demand, the appointment letter should state that if the debtor fails to keep the appointment the creditor proposes to serve the demand by advertisement/ post/ insertion through a letter box as the case may be, and that, in the event of a bankruptcy petition being presented, the Court will be asked to treat such service as service of the demand on the debtor;
(c) (in the case of a petition) if the debtor fails to keep the appointment, an application will be made to the Court for an order that service be effected either by advertisement or in such other manner as the Court may think fit.
(3) when attending any appointment made by letter, inquiry should be made as to whether the debtor is still resident at the address or still frequents the address, and/or other enquiries should be made to ascertain receipt of all letters left for them. If the debtor is away, inquiry should also be made as to when they are returning and whether the letters are being forwarded to an address within the jurisdiction (England and Wales) or elsewhere.
(4) If the debtor is represented by a solicitor, an attempt should be made to arrange an appointment for personal service through such solicitor.
(5) The certificate of service of a statutory demand filed pursuant to rule 6.11 should deal with all the above matters including all relevant facts as to the debtor’s whereabouts and whether the appointment letter(s) have been returned. It should also set out the reasons for the belief that the debtor resides at the relevant address or works at the relevant place of business and whether, so far as is known, the debtor is represented by a solicitor.
- If a mobile / home telephone or email address is known for the debtor, attempts should be made to contact the debtor through those channels.
- References to attempts to make contact, or contact received from the debtor, via email or telephone, should also be referenced in your proof of service.
- If you have attended multiple addresses, the appointment letter should be sent to all viable addresses. You can nominate one address for the appointment (generally the address deemed most viable) and send copies of that letter to the other known addresses.
- The Insolvency Rules permit a solicitor to accept service of a statutory demand on behalf of their client but not the service of a bankruptcy petition.
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