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Personal Insolvency Practice: Litigation, Procedure and Precedents 3rd ed

Mark Watson-Gandy

ISBN13: 9780854903016

Previous Edition ISBN: 9780854902330

Published: July 2023

Publisher: Wildy, Simmonds and Hill Publishing

Country of Publication: UK

Format: Hardback

Price: £125.00

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Now in its third edition, Personal Insolvency Practice is an indispensable guide to the most common personal insolvency applications for solicitors and barristers. Updated to take account of EX50A Guidance on Court Fees 2022 and Chancery Guide 2022, the book provides the busy practitioner with a comprehensive range of useful precedents and checklists, and sets out the key statutory and practice material for each application. The book provides practitioners with answers to questions such as:

What form do I use?
What fee do I pay?
What does my evidence need to cover?
Which court should I file at? • Who do I need to serve?
What will the judge be looking for?

This edition also contains new precedents for claims under section 423, Insolvency Act 1986 in the wake of Moffat v Moffat [2021] BPIR 1309 and Manolete Partners v Hayward & Barrett Holdings [2021] BPIR 427.

Subjects:: Insolvency Law, Wildy, Simmonds and Hill

Contents:: Foreword to the Third Edition; Table of Cases; Table of Statutes; Table of Statutory Instruments; Table of Practice Directions and Practice Notes; Table of International Material; Table of Forms and Guides; 1. STATUTORY DEMAND; Objective; Statutory form; Service; Evidence; Notes; Key materials; Section 268 of the Insolvency Act 1986; Rules 10.1–10.3 of the Insolvency (England and Wales) Rules 2016; Precedents; 1.1 Creditor’s statutory demand; 1.2 Certificate of personal service; 2. APPLICATION TO SET ASIDE A STATUTORY DEMAND; Objective; Application; Court fees; Time limit; Evidence; Key materials; Rules 10.4 and 10.5 of the Insolvency (England and Wales) Rules 2016; Precedent; 2.1 Application to set aside a statutory demand; 3. CREDITOR’S BANKRUPTCY PETITION; Objective; Expediting the petition and the hearing; Petition; Evidence; Court fees; Service; Hearing; Withdrawal or dismissal; Key materials; Sections 264–271 of the Insolvency Act 1986; Rules 10.6–10.17, 10.20–10.26 and 10.30 of the Insolvency (England and Wales) Rules 2016; Precedents; 3.1 Bankruptcy petition; 3.2 Witness statement verifying the bankruptcy petition; 3.3 List of appearances; 3.4 Certificate of continuing debt; 4. RESPONDING TO A CREDITOR’S PETITION: NOTICE TO ATTEND AT THE HEARING OF A PETITION; Objective; Notice of intention to appear; Court fees; Service; Key materials; Rules 10.17–10.19, 10.27 and 10.29–10.30 of the Insolvency (England and Wales) Rules 2016; Precedents; 4.1 Notice by debtor of intention to oppose bankruptcy petition; 4.2 Witness statement in opposition to the petition for bankruptcy; 5. RESPONDING TO A PETITION: APPLICATION FOR A VALIDATION ORDER; Objective; Application; Court fees; Evidence; Service; Key materials; Section 284 of the Insolvency Act 1986; Paragraph 14.8 of the CPR Practice Direction – Insolvency Proceedings; Precedents; 5.1 Ordinary application for a validation order pursuant to section 284 of the Insolvency Act 1986; 5.2 Draft validation order; 5.3 Debtor’s witness statement in support of an application for a validation order; 5.4 Accountant’s witness statement in support of an application for a validation order; 6. APPLICATION TO ANNUL A BANKRUPTCY ORDER; Objective; Application; Court fees; Evidence; Service; Report by trustee; Applicant’s claim that remuneration is or expenses are excessive; Hearing; Key materials; Sections 261 and 282 of the Insolvency Act 1986; Rules 10.132–10.141 of the Insolvency (England and Wales) Rules 2016; Precedents; 6.1 Application for annulment under section 282(1)(b) of the Insolvency Act 1986; 6.2 Draft order for annulment under section 282(1)(b) of the Insolvency Act 1986; 6.3 Witness statement in support of an application for annulment under section 282(1)(b) of the Insolvency Act 198; 7. APPLICATION TO RESCIND A BANKRUPTCY ORDER; Objective; Application; Court fees; Evidence; Service; Key materials; Section 375 of the Insolvency Act 1986; Precedents; 7.1 Application for rescission under section 375 of the Insolvency Act 1986; 7.2 Draft order for rescission under section 375 of the Insolvency Act 1986; 7.3 Witness statement in support of an application for rescission under section 375 of the Insolvency Act 1986; 8. APPLICATION FOR PERMISSION TO ACT AS A DIRECTOR OF A COMPANY NOTWITHSTANDING BANKRUPTCY; Objective; Application; Court fees; Evidence; Service; Official Receiver’s report; Hearing; Key materials; Section 11 of the Company Directors Disqualification Act 1986; Rules 9.25–9.27 of the Insolvency (England and Wales) Rules 2016; Precedents; 8.1 Application for permission under section 11 of the Company Directors Disqualification Act 1986; 8.2 Draft order for permission under section 11 of the Company Directors Disqualification Act 1986; 8.3 Witness statement in support of an application for permission under section 11 of the Company Directors Disqualification Act 1986; 9. APPLICATION FOR DIRECTIONS BY A TRUSTEE IN BANKRUPTCY; Objective; Application; Court fees; Evidence; Service; First hearing; Key materials; Section 303(2) of the Insolvency Act 1986; Precedents; 9.1 Ordinary application for directions by the trustee in bankruptcy; 9.2 Witness statement in support of an application for directions; 9.3 Order on the trustee’s application for directions; 10. APPLICATION TO APPOINT AN INTERIM RECEIVER; Objective; Application; Court fees; Evidence; Service; Hearing; Key materials; Section 286 of the Insolvency Act 1986; Rules 10.49–10.54 of the Insolvency (England and Wales) Rules 2016; Precedents; 10.1 Application for the appointment of an interim receiver; 10.2 Witness statement in support of an application for an interim receiver; 10.3 Draft order appointing an interim receiver; 11. APPLICATION FOR COMPENSATION AGAINST A TRUSTEE IN BANKRUPTCY; Objective; Application; Court fees; Evidence; Service; First hearing; Key materials; Section 304 of the Insolvency Act 1986; Precedents; 11.1 Application for compensation against a trustee in bankruptcy; 11.2 Witness statement in support of an application for compensation against a trustee in bankruptcy; 11.3 Declaration that there has been a breach of duty by a trustee in bankruptcy; 12. APPLICATION FOR AN ORDER FOR THE SALE OF THE BANKRUPT’S HOME; Objective; Application; Court fees; Evidence; First hearing; Service; Key materials; Sections 283A, 313A, 335A, 336, 337 and 338 of the Insolvency Act 1986; Rules 10.121–10.124 and 10.167–10.170 of the Insolvency (England and Wales) Rules 2016; Precedents; 12.1 Application for a declaration of interest and order for sale of the bankrupt’s matrimonial home; 12.2 Witness statement in support of an application for a declaration of interest in and order for sale of the bankrupt’s matrimonial home; 12.3 Declaration of interest and order for sale of the bankrupt’s matrimonial home; 13. APPLICATION FOR AN INTERIM ORDER IN SUPPORT OF AN INDIVIDUAL VOLUNTARY ARRANGEMENT; Objective; Application; Court fees; Evidence; Service; Steps following the making of an interim order; Further directions; Key materials; Sections 252–256 of the Insolvency Act 1986; Rules 8.8–8.18 of the Insolvency (England and Wales) Rules 2016; Precedents; 13.1 Ordinary application for an interim order; 13.2 Witness statement in support of an application for an interim order; 13.3 Interim order of court under section 252 of the Insolvency Act 1986; 14. APPLICATION FOR LEAVE TO ENFORCE SECURITY OR SEEK POSSESSION DESPITE AN INTERIM ORDER; Objective; Application; Court fees; Evidence; Service; Key materials; Section 254 of the Insolvency Act 1986; Precedents; 14.1 Ordinary application for permission to enforce security despite an interim order; 14.2 Witness statement in support of an application for permission to enforce security despite an interim order; 14.3 Order for permission to enforce security despite an interim order; 15. APPLICATION TO CHALLENGE DECISIONS MADE BY A MEETING FOR AN INDIVIDUAL VOLUNTARY ARRANGEMENT; Objective; Application; Court fees; Evidence; Service; Key materials; Sections 262–262B of the Insolvency Act 1986; Rules 8.22–8.24 of the Insolvency (England and Wales) Rules 2016; Precedents; 15.1 Application for an order revoking a decision made by the creditors’ meeting in an individual voluntary arrangement; 15.2 Witness statement in support of an application for an order revoking a decision made by the creditors’ meeting in an individual voluntary arrangement; 15.3 Draft order revoking a decision made by the creditors’ meeting in an individual voluntary arrangement; 16. APPLICATION TO CHALLENGE DECISIONS IN RESPECT OF A DEBT RELIEF ORDER; Overview; Application; Court fees; Evidence; Service; Key materials; Sections 251M and 251X of the Insolvency Act 1986; Rules 9.14 and 9.21–9.22 of the Insolvency (England and Wales) Rules 2016; Precedents; 16.1 Ordinary application for an order revoking a debt relief order; 16.2 Witness statement in support of an application for an order revoking a debt relief order; 16.3 Draft order revoking a debt relief order; 17. APPLICATION FOR AN INCOME PAYMENT ORDER; Objective; Application; Court fees; Evidence; Service; Key materials; Sections 310–310A of the Insolvency Act 1986; Rules 10.109–10.114 of the Insolvency (England and Wales) Rules 2016; Precedents; 17.1 Application for an income payment order pursuant to section 310 of the Insolvency Act 1986; 17.2 Witness statement in support of an application for an income payment order; 17.3 Income payment order; 18. APPLICATION FOR A PRIVATE EXAMINATION; Objective; Application; Court fees; Service; Witness statement; First hearing; Return date; Warrant for arrest; Key materials; Sections 366–369 of the Insolvency Act 1986; Rules 12.17–12.22 of the Insolvency (England and Wales) Rules 2016; Precedents; 18.1 Letter requesting documents before an application is made for a private examination; 18.2 Application for a private examination; 18.3 Witness statement in support of an application for a private examination; 18.4 Order for private examination; 18.5 Warrant for the arrest of the examinee on his failure to attend a private examination; 19. APPLICATION FOR A DECLARATION THAT A TRANSACTION IS INVALIDATED BY VIRTUE OF SECTION 284 OF THE INSOLVENCY ACT 1986; Objective; Application; Court fees; Evidence; Service; First hearing; Key materials; Section 284 of the Insolvency Act 1986; Precedents; 19.1 Application for a declaration of invalidity of a transfer pursuant to section 284 of the Insolvency Act 1986; 19.2 Witness statement for a declaration that the transaction is invalidated by section 284 of the Insolvency Act 1986; 19.3 Declaration that a transaction is invalidated pursuant to section 284 of the Insolvency Act 1986; 20. APPLICATION TO SET ASIDE A TRANSACTION AT AN UNDERVALUE; Objective; Application; Court fees; Evidence; Service; First hearing; Key materials; Sections 339, 341–342 and 435 of the Insolvency Act 1986; Precedents; 20.1 Application for a declaration that a payment is a transaction at an undervalue pursuant to section 339 of the Insolvency Act 1986; 20.2 Witness statement to set aside a transaction at an undervalue pursuant to section 339 of the Insolvency Act 1986; 20.3 Declaration that a payment is a transaction at an undervalue pursuant to section 339 of the Insolvency Act 1986; 21. APPLICATION TO SET ASIDE A PREFERENCE; Objective; Application; Court fees; Evidence; Service; First hearing; Key materials; Sections 340–342 and 435 of the Insolvency Act 1986; Precedents; 21.1 Application for a declaration of a preference pursuant to section 340 of the Insolvency Act 1986; 21.2 Witness statement for a declaration of a preference pursuant to section 340 of the Insolvency Act 1986; 21.3 Declaration of a preference pursuant to section 340 of the Insolvency Act 1986; 22. APPLICATION TO SET ASIDE A TRANSACTION DEFRAUDING CREDITORS; Objective; Claim; Court fees; Evidence; Key materials; Sections 423–425 of the Insolvency Act 1986; Precedents; 22.1 Claim for a declaration that a payment is a transaction defrauding creditors pursuant to section 423 of the Insolvency Act 1986; 22.2 Particulars of claim in support of a claim to set aside a fraudulent transaction pursuant to section 423 of the Insolvency Act 1986; 22.3 Witness statement to set aside a fraudulent transaction pursuant to section 423 of the Insolvency Act 1986; 22.4 Declaration that a payment is a transaction defrauding creditors pursuant to section 423 of the Insolvency Act 1986; 23. APPEAL; Objective; Appeal notice; Court fees; Service; Respondent’s notice; Appeal bundle; Time limits; Key materials; Part Four of the CPR Practice Direction – Insolvency Proceedings; Rules 12.58 and 12.61 of the Insolvency (England and Wales) Rules 2016; Schedule 10 to the Insolvency (England and Wales) Rules 2016; 24. TOOLKIT; Issuing proceedings in the Royal Courts of Justice; Courts Electronic Filing – CE-File; County court or High Court?; Insolvency and Companies Court judge or High Court judge?; Urgent applications; Evidence; Bundles; Time estimates; Skeleton arguments; Useful email addresses; The Royal Courts of Justice; The County Court at Central London; Court dress; Court fees; Key materials; Rules 1.5, 1.6, 1.35, 10.11 and 12.5 of the Insolvency (England and Wales) Rules 2016; Schedule 4 to the Insolvency (England and Wales) Rules 2016; Schedule 5 to the Insolvency (England and Wales) Rules 2016; Schedule 6 to the Insolvency (England and Wales) Rules 2016; Parts One and Three of the CPR Practice Direction – Insolvency Proceedings; Precedents; 24.1 Blank application form; 24.2 Certificate of urgency; 24.3 Bankruptcy petition on default of a voluntary arrangement; 24.4 Creditor’s bankruptcy petition on failure to comply with a statutory demand for a liquidated sum payable at a future date; 24.5 Creditor’s bankruptcy petition on failure to comply with a statutory demand for a liquidated sum payable immediately; 24.6 Creditor’s bankruptcy petition where execution or other process on a judgment has been returned in whole or part; 24.7 Debtor’s notice of opposition; 24.8 List of appearances; 24.9 Notice of persons intending to appear; 24.10 Statutory demand under section 268(1)(a) of the Insolvency Act 1986. Debt for liquidated sum payable immediately following a judgment or order of the court; 24.11 Statutory demand for a liquidated sum; 24.12 Statutory demand for a debt payable at a future date; 24.13 Listing certificate for a non-attendance pre trial review; Index