Insolvency disputes, for creditors, debtors and office holders.
Winding up and bankruptcy petitions, statutory demands, transactions at an undervalue, preferences, wrongful trading and director duty claims. Litigation authorised panel members can conduct the proceedings.
Insolvency litigation moves quickly and the procedural rules are unforgiving. Petitions are advertised, hearings are listed in a busy court list, injunctions to restrain presentation are heard at short notice, and a step missed under the Insolvency (England and Wales) Rules 2016 can be fatal to an otherwise good position.
Clerk&Counsel places independent barristers on insolvency disputes for creditors chasing a company or an individual, for directors and debtors under attack, and for insolvency practitioners pursuing recoveries into the estate. We are a clerking agency rather than a chambers or a firm of solicitors.
Members of our panel who hold a litigation extension from the Bar Standards Board can conduct litigation on these disputes as well as appearing in them. That covers preparing and issuing the petition or application, serving it in accordance with the rules, filing certificates and evidence, and attending every hearing in the Insolvency and Companies List or the relevant district registry.
Insolvency work we cover.
- Winding up petitions and applications to restrain presentation or advertisement.
- Bankruptcy petitions, statutory demands and applications to set them aside.
- Annulment and rescission applications.
- Transactions at an undervalue and preferences under sections 238 and 239 of the Insolvency Act 1986.
- Transactions defrauding creditors under section 423.
- Wrongful and fraudulent trading claims, and misfeasance applications under section 212.
- Director disqualification proceedings and undertakings.
- Validation orders, administration challenges and office holder remuneration disputes.
Barristers who can issue and run insolvency proceedings.
In insolvency work the gap between advocacy and conduct is particularly narrow. The same knowledge that wins the hearing is what gets the petition properly issued, served, certified and listed. A litigation authorised barrister can do both, which removes a handover at precisely the point where deadlines are tightest.
For a creditor, that means the petition can be prepared, issued and pursued to a winding up order by one person. For a director facing a demand or a petition, it means the application to set aside or to restrain can be made within the short windows the rules allow.
Office holders will usually have their own solicitors, and in that setting we place counsel in the conventional way, for advice, drafting and advocacy on recoveries and disqualification work.
Deadlines that decide the outcome.
An application to set aside a personal statutory demand must generally be made within eighteen days of service, and the demand cannot found a petition until the twenty one day period has run. Miss the first and you are defending a petition instead.
Where a company disputes the debt, an injunction restraining presentation or advertisement of a winding up petition should be sought before advertisement, because once the petition is advertised the bank will usually freeze the account and the damage is done regardless of the outcome.
Antecedent transaction claims have their own relevant times, running back two years for a transaction at an undervalue with a connected party and six months for a preference to an unconnected creditor, extended to two years where the recipient is connected. Those windows shape whether a claim is worth investigating at all.
When the claim is against you personally.
Directors of a failed company face several possible exposures: wrongful trading where the company continued to trade after there was no reasonable prospect of avoiding insolvent liquidation, misfeasance for breach of duty, personal liability under overdrawn director loan accounts, and disqualification proceedings brought by the Secretary of State.
These claims are usually document led, and the contemporaneous board records, management accounts and professional advice taken at the time are the strongest defence available. Counsel should be involved before you respond to the office holder's first request for information.
Where a disqualification undertaking is on the table, the length offered and the schedule of unfit conduct are both negotiable, and advice on whether to give one is a decision with years of consequences.
Specialist areas within this practice.
- Insolvency barristers
Our insolvency and restructuring counsel, and location coverage.
- Debt recovery claims
Enforcing payment before insolvency steps are taken.
- Partnership disputes
Partnership dissolution and insolvency crossover.
- Banking and finance disputes
Security, guarantee and lender enforcement issues.
- Commercial litigation barristers
Wider commercial and Business and Property Court work.
Facing a petition, or bringing one?
Send the demand, petition or office holder correspondence with a short chronology. We will come back quickly with counsel options and whether a litigation authorised barrister can act on the record.
Common questions.
Can a barrister issue a winding up petition for me?
Yes, where the barrister holds a litigation extension. They can prepare and issue the petition, serve it in accordance with the Insolvency Rules, file the required certificates and evidence and appear at the hearing.
How long do I have to set aside a statutory demand?
An application to set aside a personal statutory demand must generally be made within eighteen days of service. The timescale is short and applications outside it require an explanation the court will scrutinise.
Can I stop a winding up petition being advertised?
Where the debt is genuinely disputed on substantial grounds or there is a real cross-claim, an injunction restraining presentation or advertisement can be sought. It needs to be pursued urgently, before advertisement causes the bank account to be frozen.
What is a preference claim?
A payment or other step that puts a creditor in a better position than they would have been in on liquidation, made when the company was insolvent, within six months of the onset of insolvency, or two years if the creditor was connected. The company must have been influenced by a desire to prefer.
Am I personally liable for company debts?
Not ordinarily, but you can be under a personal guarantee, for an overdrawn loan account, or through wrongful trading and misfeasance claims. Early advice is worth far more than a defence prepared after the office holder has built the file.