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 must be not less than £5,000 in accordance with Insolvency requirements. A statutory demand is the first step in the Insolvency Process, but the Demand has not been issued by the Court, and therefore will not have a Court Seal or a hearing date.
Timescales for Service: There is no set timescale for service, but service should not be delayed un-necessarily.
What to point out to subject at point of service: The name of the Creditor and instruct the debtor to read the document in full and seek independent legal advice. Point out in the information shown in the ‘Warning’ at the top of the Demand.
Proof of Service required: Certificate of Service. In the case of personal service, the date of service set out in the certificate of service should be recited as the exact time of service, and then whether service is effected before/after 16.30 hours. For letterbox service, you should specify the date on which you believe the Demand will come to the attention of the debtor by.
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 paragraphs 11.2 and 12.7 concerning statutory demands.
Method of Service: Personal service where possible, or the Demand can be letter boxed at the address providing the process server has taken the necessary steps which would normally justify the court in making an order for substituted service.
In most cases, evidence of the following steps (detailed with the practice directions) will suffice to justify acceptance for presentation of a petition where the statutory demand has been served by substituted service:
(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. 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.
(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.
- You can only effect service upon the solicitor if you obtain confirmation from them (preferably in writing) that they have been authorised by the debtor to accept service on the debtor’s behalf. You cannot serve the solicitor simply because you have their details, and you cannot serve just because the debtor asks you to if the solicitor advises they have not been authorised.
Should you have any questions what so ever please contact firstname.lastname@example.org or email@example.com