A Company (Number CR-2024-BHM-000012), Re

The Court of Appeal considered when a winding up petition is "presented" in an era of electronic working and in the presence of a deposit requirement for the Official Receiver. The court held that presentation requires delivery of the petition to the court in compliance with any statute, rule or practice direction applicable to presentation. In the present statutory and rules framework that includes payment of the Official Receiver's deposit: a petition will only be presented when the petition has been delivered to the court and the payment requirement (or suitable alternative arrangement) has been complied with.

The court therefore concluded that the petition in this case was presented only when the cheque for the Official Receiver's deposit was received by the Manchester court office on 18 January 2024. The judge in the High Court was entitled to review and rescind his earlier order because by the time his earlier order took effect the petition had been validly presented and issued. The appeal was dismissed.

Background and procedural posture:

• The dispute arose after the petitioner presented a winding up petition against the company following unpaid invoices and a statutory demand. The company applied under rule 7.24(1) of the Insolvency (England and Wales) Rules 2016 for an injunction restraining presentation of a petition; that application was heard in Birmingham.
• The petitioner had submitted the petition electronically to the Manchester Business and Property Court (CE-File) on 12 January 2024 but the Official Receiver's deposit had not been received until 18 January 2024, when the Manchester court sealed and delivered the petition. The Birmingham judge (HHJ Tindal) originally made an order on 17/18 January 2024 directing that the petition should not be issued pending the Birmingham hearing, but then rescinded that order later on 18 January 2024 on the basis that presentation had already occurred.
• The company obtained permission to appeal to the Court of Appeal (Asplin LJ granted permission) and this appeal concerned whether the petition had been presented before the first Birmingham order and whether the High Court judge was entitled to rescind his earlier order.

Issues framed:

• What is the correct legal meaning of "presentation" of a winding up petition in the context of the Insolvency Act 1986, the 2016 Rules, the Insolvency Proceedings (Fees) Order 2016 and the practice directions on electronic working?
• Does presentation require the payment (and receipt) of the Official Receiver's deposit before a petition can be treated as presented?
• Whether the High Court judge was entitled to rescind his interim direction once the Manchester court had taken the steps it did.

Reasoning and outcome:

• The court carried out a historical and textual analysis of the legislation and rules, concluding that presentation has always required valid presentation in compliance with statutory and procedural conditions. Under the 2016 Rules (read with definitions) a petition must be delivered to the court for filing and the court may not file a petition unless a receipt for the Official Receiver's deposit is produced on presentation. The Insolvency Proceedings (Fees) Order 2016 likewise contemplates payment of the deposit on presentation.
• Electronic Working (PD51O) permits electronic submission but contemplates acceptance/issue only once any required payments are accounted for; the Practice Direction on Insolvency Proceedings (paragraph 9.3) expressly treats a petition as not presented until the deposit has been paid and, for cheques, until the court receives the cheque.
• The court therefore concluded that presentation requires compliance with the payment requirement. The petition was presented when the cheque was received in Manchester on 18 January 2024 and a sealed copy was issued and delivered thereafter. The Birmingham judge was entitled to review and rescind his earlier direction because, by the time the first order circulated, the petition had been validly presented and issued. There was no basis to strike the petition out for breach of process by the petitioner.

Wider context: The court emphasised the importance of clarity in rules and practice directions about the date of presentation because many statutory consequences under the 1986 Act flow from that date.

Appeal dismissed. The court held that a winding up petition is presented only when it has been delivered to the court and the requirements of any relevant statute, rule or practice direction applicable to presentation have been complied with; in the present statutory and rules framework that includes payment (and receipt) of the Official Receiver's deposit. The petition in this case was therefore presented on 18 January 2024 when the Manchester court received the deposit and issued the sealed petition, and the High Court judge was entitled to rescind his earlier order that had been overtaken by those events.

Appeal from HHJ Tindal (High Court, Business and Property Courts in Birmingham), order(s) made 17/18 January 2024. Company sought permission to appeal and Asplin LJ granted permission to appeal on 14 February 2024 and stayed advertisement of the petition. Interim injunctive step by HHJ Halliwell in Manchester on 6 February 2024 and further stay on 16 February 2024 in light of permission to appeal. Appeal heard in the Court of Appeal, judgment delivered 25 November 2024 (neutral citation [2024] EWCA Civ 1436).