Bankruptcy petitions generally

September 1997 

45.82 Who may petition for bankruptcy

(Amended October 2010)

A bankruptcy order can only be made as a result of a petition for such an order being made to the court [Note 1]. A bankruptcy petition can be presented by any of the following [Note 2]:

a. one of the individual’s creditors or jointly by more than one of them,

b. the individual himself / herself,

ba. a temporary administrator (within the meaning of EC Regulation)

bb. a liquidator appointed by virtue of Article 3(1) of EC Regulation

c. the supervisor of, or any person (other than the individual) who is for the time being bound by a voluntary arrangement proposed by the individual and approved under Part VIII of the Act, or

d. where a criminal bankruptcy order has been made against the individual, by the Official Petitioner or by any person specified in the order in pursuance of section 39(3)(b) of the Powers of Criminal Courts Act 1973 

45.83 Supervisor of voluntary arrangement to petition

The court cannot make a bankruptcy order on the petition of the supervisor of a voluntary arrangement (or a person bound by it) unless it is satisfied that the debtor has failed to comply with his obligations under the voluntary arrangement or supplied false or misleading information to obtain the voluntary arrangement or has not done everything that the supervisor reasonably expected of him [Note 3].

Where an order is made on the petition of the supervisor or by a creditor bound by the voluntary arrangement, under the provisions of s276 and s264(1)(c), then it is no longer appropriate for the voluntary arrangement to remain in being and it is therefore terminated. Unless the arrangement provides otherwise, any funds held by the supervisor become part of the bankrupt’s estate (subject to the claims of any third party which may have supplied those funds) and where the order is made on a debtor’s petition the expenses of the failed voluntary arrangement are a first charge on the bankrupt’s estate in respect of the assets that were part of the voluntary arrangement [Note 4] [Note 5] [Note 6]. 

45.84 Domiciliary and residence rules

Neither the debtor himself nor a creditor can present a petition unless the debtor is domiciled in England or Wales (a person’s domicile is the place in which he has his permanent and fixed home and to which, whenever he is absent, he has the intention of returning); is personally present in England and Wales on the day on which the petition is presented; or at any time in the previous 3 years has been ordinarily resident, has had a place of residence or has carried on business in England and Wales [Note 7]. 

45.85 Other preliminary conditions

If the petitioner is able to present a petition under two or more paragraphs of s264(1), he must identify which one he is presenting the petition under (i.e. as a creditor or as the supervisor of a voluntary arrangement).

A petition may not be withdrawn without leave of the court. The court has the general power to dismiss a petition or to stay the proceedings for any reason and on such terms and conditions as it thinks just [Note 8]. 

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