September 1997

45.136 Grounds for the petition

A debtor can petition for his own bankruptcy only on the grounds that he is unable to pay his debts. The petition must be accompanied by a sworn statement of affairs in the prescribed form.

45.137 Form and content ofthe petition

The petition must contain the following information in relation to the debtor:-

1. his name, address and occupation;
2. the name(s) in which he carries on business and whether he carries on those business alone;
3. the nature of his business and his trading address(es);
4. the names and addresses and nature of all businesses which he has carried on during the period that his bankruptcy debts were incurred and whether he carried on those businesses alone.

If the debtor has used any other names than the one given, these must be included in the petition. The information provided in the petition determines the full title of the proceedings.

45.138 Admission of insolvency

The petition must contain a statement that the debtor cannot pay his debts and a request that a bankruptcy order be made against him. Details of previous bankruptcies together with information regarding any composition scheme of arrangement or voluntary arrangement into which the bankrupt has entered or administration order to which he has been subject in the previous 5 years must be given and if there is a voluntary arrangement currently in force, the name and address of the supervisor must also be given.

45.139 Sworn statement of affairs

The petition must be accompanied by a sworn statement of affairs, prepared on the statutory forms. The statement of affairs should contain details of the debtor’s creditors and his assets and liabilities.

45.140 Procedure on issue, presenting and filing

The petition and the statement of affairs should be filed with three copies of the petition and two copies of the statement of affairs. One copy of the petition is returned to the debtor with the hearing time and date endorsed, one copy and a statement of affairs is sent to the official receiver, and the spare copy of each is retained by the court to be sent to an insolvency practitioner if one is appointed to prepare a report under s273 (see paragraph 45.143).

In practice, in the majority of cases the petition will be heard immediately and, assuming the order is made, the official receiver’s copies of the petition and the statement of affairs will usually be given to the debtor to be delivered forthwith to the official receiver. This gives the official receiver early access to the papers to assist in his examination of the bankrupt. Where the petition is not to be heard immediately, then a date will be fixed for a hearing as soon as possible. If the petition made reference to a voluntary arrangement being in force, then the court will fix a hearing date, giving 14 days notice to the supervisor of the voluntary arrangement. The supervisor has the right to attend and be heard at the hearing.

45.141 Notice to the Chief Land Registrar

Once the petition is filed the court sends notice to the Chief Land Registrar immediately for registration in the register of pending actions.

45.142 EA Hearing

At the hearing the court may make a bankruptcy order or it may appoint an insolvency practitioner to prepare a report under s273 (See paragraph 45.145).

45.143 EA

45.144 EA

The Enterprise Act 2002 section 269, Schedule 23 Paragraph 2 states that section 255 (bankruptcy summary administration) shall cease to have effect. As a consequence paragraphs 45.143 and 45.144 have been deleted

45.145 Insolvency practitioners report

In its report the Cork Committee stated that bankruptcy should be an undertaking of last resort, especially where the amounts involved are small. Accordingly, in debtors’ petition cases, where the debtor’s unsecured liabilities are less than £20,000, his assets are more than £2,000 and he has not been adjudged bankrupt nor entered into a scheme or composition with his creditors in the five years before the presentation of the petition, the court must not make a bankruptcy order if it considers it more appropriate to appoint an insolvency practitioner to prepare a report.

Where the court appoints an insolvency practitioner to prepare a report, a copy of the petition and statement of affairs is sent to him and a date fixed for the consideration of his report. The insolvency practitioner must enquire into the debtor’s affairs and determine whether the case is a suitable one for a voluntary arrangement and whether the debtor is willing to enter into such an arrangement. The insolvency practitioner must file his report at court and send a copy to the debtor so as to be received not less than three days before the hearing and a further copy to the Official Receiver and the debtor is entitled to attend and be heard at the hearing. At the hearing to consider the report the court may make an interim order under s252 to facilitate a voluntary arrangement or make a bankruptcy order. In practice, such referrals under s273 are few and far between.

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