A notice of intention to appoint administrators (a Notice), although not an absolute bar to making a final charging order, will generally act as a moratorium. This prevents creditors from taking steps to enforce their claims against a company without the permission of the court.
Introduction
Against the backdrop of the recent sheriff court decisions regarding the need to appoint a Court Reporter even in cases where the assets are insufficient to meet the IPs' fees, the Court of Session has taken an innovative approach to approving IP fees without the need to appoint a court reporter.
Background
In Pick v Sumpter and another, the first defendant's trustee in bankruptcy applied for an order for possession of the defendants' matrimonial home. At the hearing in May 2006, the evidence showed that the sum outstanding as at November 2005 was £25,571 but did not take into account legal costs. That sum was an estimate and did not take into account statutory interest on the bankrupt's debts beyond the date of the hearing, solicitor's costs of the possession hearing or any increase or decrease in the trustee's remuneration.
Justice has to be seen to be done. Without clear reasons from the court as to the decision it reached, a party is entitled to have reheard issues it raised on an earlier application but which there is no evidence the court considered.
Background
Over the past year the Courts in Scotland have been tightening up their procedures in relation to the granting of extensions in administration. This note sets out the various issues that have arisen and considers the best ways to ensure that applications of this type proceed without unnecessary costs.
The Insolvency Service (IS) has published a consultation paper on reforming debtor petition bankruptcy and early discharge from bankruptcy. The proposed reforms, which are aimed at speeding up the procedure and lowering costs, are to:
The courts have the power to and increasingly will make a civil restraint order where an individual persistently issues claims that are totally without merit.
Although service of a statutory demand or winding-up petition on a company is a blunt and unsophisticated debt recovery tool, it will often have the desired effect for a creditor as they are seldom ignored and ignored only at the company's peril. It can often prompt payment of the sum due, or judgment owed, where previously there has been prevarication and empty promises of payment.
Here is a reminder of some important issues a (solvent) company should consider if a statutory demand or petition is served upon it.
Doing nothing is not an option
The threat of insolvency proceedings against a corporate debtor can greatly assist a creditor's primary objective of getting paid, preferably in advance of everyone else. This is particularly so where the debtor is prevaricating but there is no genuine dispute that the sum in question is due and owing. Although the courts decry the use of the winding-up procedure as a means of debt collection, it is often a very effective tool.
Consider the following when faced with a corporate debtor who is refusing, without genuine reason, to settle its debts:
Where a receiver of an insolvent company brings an unsuccessful claim, a personal costs order will not be made against the receiver unless there are exceptional circumstances making it just to do so.