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

A winding-up petition is not presented merely because it has been electronically submitted. Delivery to the court is the core element, but valid presentation also requires compliance with applicable statutory, rule or practice-direction requirements. Under the Insolvency (England and Wales) Rules 2016 and the Insolvency Proceedings (Fees) Order 2016, the Official Receiver’s deposit must be paid on or before presentation. Where payment is made by cheque, presentation occurs when the cheque is received by the court. Electronic submission, acceptance notifications or later sealing do not alter that rule. Presentation and issue remain distinct stages. A valid order preventing issue may nevertheless be overtaken before circulation if the petition has already been issued. The appeal was dismissed.

The Company appealed against a second order made by His Honour Judge Tindal in the Business and Property Courts in Birmingham on 18 January 2024. The Company had applied for an injunction restraining the respondent from presenting or issuing a winding-up petition concerning a disputed debt.

The petition had been submitted electronically in Manchester on 12 January, but the Official Receiver’s deposit was not received until 18 January. The judge first ordered that the petition should not be issued, then rescinded that order and dismissed the application. The appeal concerned when the petition was presented, whether the first order was effective, and whether the second order could properly be made.

Appeal dismissed. Lord Justice Snowden gave the leading judgment. Lady Justice Falk and Lord Justice Peter Jackson agreed.

1. Presentation. A winding-up petition is presented when it is delivered to the court in compliance with the requirements governing valid presentation. Electronic delivery is capable of satisfying the delivery element. However, presentation is not complete where an applicable statutory, rule or practice-direction condition has not been fulfilled. The formal-defect safeguard in Rule 12.64 of the Insolvency (England and Wales) Rules 2016 did not apply: failure to pay the Official Receiver’s deposit was not merely a formal defect or irregularity.
2. Official Receiver’s deposit. Rule 7.7(1), read with the definition of file with the court in Rule 1.2(2), requires delivery of the petition to the court for filing by the court. Rule 7.7(2) requires production of a receipt for the deposit on presentation. That requirement means that payment must occur on or before presentation. Under paragraph 9.3.4 of the The Practice Direction on Insolvency Proceedings, payment by cheque occurs when the cheque is received by the court. The petition was therefore presented on 18 January, not on 12 January.
3. Presentation and issue. Under CPR Practice Direction 51O, issue is a later court step involving acceptance and sealing of an originating process. The first order correctly operated as a direction to the Manchester court office not to issue a sealed copy, although its recital that presentation had already occurred was wrong. It was not an injunction against the petitioner and did not prohibit the petitioner from submitting the petition.
4. Review of the first order. By the time the sealed first order was circulated, the petition had been validly presented, issued and delivered to the petitioner. The first order had therefore been overtaken by events and had failed to achieve its intended result. The judge was entitled under Rule 12.59 of the Insolvency (England and Wales) Rules 2016 to review it, dismiss the Birmingham application and leave the dispute about the debt to a fresh application in Manchester. There had been no abuse of process or breach justifying striking out the petition. The injunction against notice or advertisement of the petition was maintained pending the Manchester application or further order, with no order as to costs.

• Court of Appeal (Civil Division): In [2024] EWCA Civ 1436, the appeal was dismissed. The injunction against advertisement of the petition was maintained pending the Company’s Manchester application or further order.
• High Court of Justice, Business and Property Courts in Birmingham: His Honour Judge Tindal made a first order directing that the petition should not be issued pending the application, then made a second order rescinding the first order, dismissing the application and vacating the hearing.