What is a Winding Up Petition or Order and How Should You Respond to Creditors like HMRC?
A winding up petition is a legal notice issued by a creditor like HMRC with the intention of forcing a company into closure. The petition is presented at court where a judge will hear the case.
It is amongst the most serious threats any limited company can face and you should act immediately if you have received one. If the debts remain outstanding, the creditor (often HMRC) will make an application to the courts to have the company compulsorily wound up.
What is a Winding up Order
A winding up order is the court order that follows a successful petition and it is this procedure that places a limited company into compulsory liquidation.
As soon as the Order has been issued, the Official Receiver will commence the process of winding up your company.
When is a Winding up Petition Issued?
Any petitioning creditor must be able to demonstrate proof that:
- The debts exists
- The debt is above £750
- The debt is not contested
- The debtor has been given every chance to pay
The judge will not want his court time wasted and is likely to throw out ‘frivolous’ claims. A claim may be deemed frivolous where the ‘due process’ (proving the three bullet points above) have not been followed.
The most effective and speediest method of following due process is to serve a statutory demand. The statutory demand is the most widely used legal tool prior to winding up a company.
What is not as widely known is that a County Court Judgement can be just as effective too.
What’s the Winding up Process?
After the petition has been issued, the debtor has 7 days to respond, before the Petition can be formally advertised and this will alert the banks to freeze the company’s accounts. This brief 7-day window is often the only time that directors have to prevent compulsory liquidation so, if an alternative solution is to be found, the directors will need to respond swiftly. It is possible to rescue a ‘business’ or a company even at this late stage, but the more time that passes beyond the advertising stage the more difficult it becomes.
Once the order has been issued, the court will appoint an Official Receiver which may be an appointed Insolvency Practitioner. The Official Receiver then liquidates the company’s assets and distributes the proceeds to its creditors such as HMRC.
When is the Winding up Petition Advertised in The Gazette
At least seven days after the creditor has served the petition on the company (and at least seven days before the court hearing), the creditor may advertise the petition in The Gazette, an official journal of public record. This alerts the remaining creditors to the petition and they can use the same petition to claim outstanding amounts owed to them.
Technically once the petition has been filed at court, none of the company’s assets should be transferred or sold.
When is a Winding up Petition presented to the Court
At the hearing, the judge will hear the creditors’ application of the petition to the court for the winding up of the company and will decide whether to:
- Adjourn the hearing;
- Dismiss the petition;
- Force the company into compulsory liquidation
- Make any other order that the court may think is appropriate.
If an order is issued by the court, they will appoint an Official Receiver to liquidate the company.
Which Court Deals with a Winding up Petition?
If the company involved has a ‘paid up share’ capital of more than £120,000, and or has debts in excess of £50,000 the petition will be heard in the High Court. If the amount is less than this, it will be heard in the most appropriate court, nearest to the company’s registered office.
How Long Does it Take to Wind up a Company?
Typically, from serving the winding up petition to the Court hearing and serving a Court Order usually takes 4-6 weeks, but depends on how busy the Courts are. The time of year will also impact as the Courts are closed in Summer and over the Christmas period.
Can You Stop or Delay a Petition?
Much of this depends on how quickly you take action after receiving it. There are certain actions that can be taken within the first seven days of receiving a winding-up petition that may help:
- Pay off the creditor. You will also have to reimburse the creditor via payment for their costs in serving the petition. If other creditors have attached to the petition, you will have to pay them too as part of the debt recovery process.
- If the company is placed into administration, the court may not be able to issue a winding up order.
- Negotiate a Company Voluntary Arrangement (CVA) with the company’s creditors.
- Negotiate with the creditor so that they don’t advertise the petition in The Gazette. This will help to give you time to pay the creditor before the company’s assets and bank accounts are frozen.
- Request that the courts adjourn or cancel the hearing.
- Dispute the debt. This step should only be taken where you have evidence that the debt claimed by the creditor is not correct and can be disputed. If you are successful in the dispute, the creditor will be found to have abused the court application process, which is very serious.
After the seven day period has elapsed it’s increasingly difficult to rescue the company. Without intervention it is likely that the process will continue and the court will appoint an Official Receiver to wind up the company.
What are the Potential Consequences for Directors?
The Official Receiver has to investigate the conduct of the directors as part of the insolvency proceedings and compulsory liquidation process. In serious cases where the directors are found to be liable for misconduct, they can be disqualified from acting as a director of any company for a period of two years, up to 15 years. This also applies to shadow directors (those acting in the capacity of a director, although not officially appointed as such).
There are additional repercussions for those directors shown to have wrongfully carried on trading after they knew the company was insolvent and they can be held personally liable for any debts incurred after the company became insolvent.
What are the Winding up Petition Fees?
For the creditor issuing the petition, they are as follows:
- Court Fee £1180 (broken down into £280 – court fees and £1,600 petition deposit)
- Serving Proceedings is the term for having a legal document ‘served’ personally. The current fee for this ranges from £75-£100
- Gazette Advertising Costs – It costs £79.40 plus VAT to advertise the winding up petition in the London, Edinburgh or Belfast Gazette (if required)
Act Now to Prevent Liquidation: Contact us For Advice
If you have received an HMRC winding up petition or order, they should not be ignored as HMRC are usually serious and committed in their aim to recover any money that is owed, or to put your limited company out of business, so it is important to know how to respond.
You should seek professional advice immediately if you have been served a petition to wind up your company. The quicker you take action, the more chance you have of either stopping the petition or minimising the publicity it receives. It will not disappear if you ignore it and it should be taken seriously.
You have a duty as a director to act in the best interests of your limited company and minimising the damage is likely to help your position if your actions are investigated by the Official Receiver.
If your company has been served a petition, you should now understand why it is important that you act immediately. Call us on 08000 746 757 for free confidential advice.