Where, in England and Wales, a creditors winding up petition is dismissed, how must the fact of that dismissal be formally notified to others? In particular, in this regard, (a) what are the obligations upon the Petitioner? and (b) what powers does the company/respondent to the Petition have, in the event that the Petitioner fails to comply with those obligations?

This article will consider these issues, in light of:

(1) Insolvency (England and Wales) Rules 2016 (SI 2016/1024) ('2016 Rules'), r.7.23, entitled 'Petition dismissed'; and

(2) Practice Direction: Insolvency Proceedings [2020] BCC 698 ('PD:IP'), paragraph 9.8.3.

Key Rule - 2016 Rules r.7.23

The key rule here is in the 2016 Rules, namely r.7.23[0], entitled (as stated) 'Petition dismissal'. It contains the key procedures to be undertaken/available, when a creditors winding up petition is dismissed. Rule 7.23 reads (in full):

'(1) Unless the court otherwise directs, when a petition is dismissed the petitioner must give a notice of the dismissal as soon as reasonably practicable.

(2) The notice must be -

(a) gazetted; or

(b) advertised in accordance with any directions of the court.

(3) The notice must contain -

(a) a statement that a petition for the winding up of the company has been dismissed;

(b) in the case of an overseas company, the address at which service of the petition was effected;

(c) the name and address of the petitioner;

(d) the date on which the petition was presented;

(e) the date on which the petition was gazetted or otherwise advertised; and

(f) the date of the hearing at which the petition was dismissed.

(4) The company may itself gazette notice of the dismissal where -

(a) the petitioner is not the company; and

(b) the petitioner has not given notice in accordance with paragraphs (1) to (3) within 21 days of the date of the hearing at which the petition was dismissed.'[1]

As will be apparent, this rule sets out how, post petition dismissal, formal notification is to be given, of that fact, via the Gazette[2] (unless otherwise ordered). There:

(1) are mandatory obligations on the Petitioner (unless the Court orders otherwise); and

(2) is a power (but not an obligation) granted to the company/respondent to the Petition (the 'Company'), to itself organise for a notice of the petition's dismissal, to appear in the Gazette, where 2 conditions are satisfied.

Default Obligation on the Petitioner

The default obligation (i.e. unless the Court has ordered otherwise) therefere, is that the Petitioner to the petition must give notice (wide meaning) of the dismissal. The requirements are that the notice must:

(1) be done, as soon as reasonably practicable (time);

(2) be gazetted (i.e. a notice made to appear in the Gazette), unless the Court directs it be advertised by an alternative method/route (method of notice);

(2) contain the 5 categories of information (contents), as prescribed by r.7.23(3), namely:

(a) a statement that a petition for the winding up of the company has been dismissed;

(b) in the case of an overseas company, the address at which service of the petition was effected;

(c) the name and address of the petitioner;

(d) the date on which the petition was presented;

(e) the date on which the petition was gazetted or otherwise advertised; and

(f) the date of the hearing at which the petition was dismissed.

Where the notice is to appear in the Gazette, the notice:

(a) will be on Notice 2461 (to see a list of the latest dismissal notices gazetted - click here)

(b) must, it seems, also comply with the general requirements for notices in the Gazette. These general requirements are contained in r.1.12 to the 2016 Rules (r.1.12 appears in Chapter 4, entitled 'Gazette notices relating to a company', which in turn, appears in the 2016 Rules, Part 1 entitled 'Scope, Interpretation, Time and Rules about Documents'). Rule 1.12 reads (in full):

'A notice relating to a registered company must also state -

(a) its registered office;

(b) any principal trading address if this is different from its registered office;

(c) any name under which it was registered in the period of 12 months before the date of the commencement of the proceedings which are the subject of the Gazette notice; and

(d) any other name or style (not being a registered name) -

(i) under which the company carried on business, and

(ii) in which any debt owed to a creditor was incurred.

(2) A notice relating to an unregistered company must also identify the company and specify any name or style -

(a) under which the company carried on business; and

(b) in which any debt owed to a creditor was incurred.'

Obligation on the Petitioner - The Court ordering otherwise

As stated above, r.7.23(1) contains a default rule, which is expressly stated to be subject to the Court directing/ordering otherwise. r.7.23 contains nothing further on this, but PD:IP, paragraph 9.8.3, is relevant here. PD:IP, paragraph 9.8.3 (at 706) states when the Court will usually dispense with the requirements in r.7.23 (where a request for dispensation is made). After stating 'Attention is drawn to the requirement to give notice of the dismissal of a petition under r.7.23(1).', PD:IP, paragraph 9.8.3 provides:

'...The court will usually, on request, dispense with the requirement where 

(a) presentation of the petition has not previously been gazetted or 

(b) the company has become the subject of some supervening insolvency process, or 

(c) the company consents.'

[subparagraphs formatting changed]

This is guidance only as to what the Court will usually do in such circumstances. The Court is not bound to follow this guidance. The Court is at liberty to act differently, should it so choose. But paragraph 9.8.3 is instructive as to when the Court will usually dispense with r.7.23(1) requirements.

Power to the Company

As stated above, r.7.23 (4) provides that:

'The company may itself gazette notice of the dismissal where -

(a) the petitioner is not the company; and

(b) the petitioner has not given notice in accordance with paragraphs (1) to (3) within 21 days of the date of the hearing at which the petition was dismissed.'

In other words, where:

(a) the Company is not the Petitioner (condition 1) - which, in the scenario this article is considering, namely creditor winding up petitions, this will always be the case; and

(b) 21 days have passed since the Petition was dismissed, and the Petitioner has failed to give notice as per r.7.23(1) to (3) (condition 2),

r.7.23(4) permits the Company, to itself, place a notice in the Gazette, giving notice of the petition's dismissal.

The structure is therefore:

(a) The obligation is on the Petitoner to give notice of the petition's dismissal 'as soon as reasonably practicable'. This may, depending on the circumstances, equate to less, or indeed, more than 21 days. (though 21 days is likely to be at the top end of what could likely be considered 'as soon as reasonably practicable'); but

(b) after 21 days, whether the Petitioner has or has not breached its obligation to give notice of the petition's dismissal 'as soon as reasonably practicable', the Company is (unquestionably) permitted, if condition 1 is satisifed, to take matters into its own hands (so to speak), and itself cause a suitable notice to be gazetted.

SIMON HILL © 2025*

BARRISTER

33 BEDFORD ROW

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