The petitioner and the company had entered into an agreement for the supply of mobile phones and services. The agreement was subsequently terminated by the petitioner for non-payment of invoices and a statutory demand in the sums said to be owing plus interest was served. On 3 January 2024 the company made an application by e-mail to the Business and Property Courts (“the BPC”) in Birmingham for an injunction restraining the petitioner from issuing a winding up petition against it. The filing of that application was accepted and a sealed copy was returned to the company on 15 January, giving a hearing date of 19 January. In the meantime, but unknown to the company, on 12 January 2024 the petitioner had submitted a winding up petition in respect of the company to the BPC in Manchester using the court’s electronic filing system. On 14 January the BPC office in Manchester informed the petitioner that the filings for the petition had been accepted and requested payment of the official receiver’s deposit in accordance with article 4 of the Insolvency Proceedings (Fees) Order 2016. The next day, the petitioner sent a cheque to cover that amount to the BPC office in Manchester by first class post. On 17 January the petitioner received a copy of the company’s application and, following dialogue between the parties, the company informed the BPC office in Birmingham of the purported presentation of the winding up petition in Manchester. Later that day a judge in Birmingham on reading the company’s application and having been made aware of the presentation of the winding up petition made an order, inter alia, restraining the issue of a winding up petition pending the hearing of an application restraining the issue of a petition which was listed for 24 January (“the first order”). On 18 January the BPC office in Manchester received the petitioner’s cheque to pay for the official receiver’s deposit and issued the winding up petition. Some two hours later the first order was served electronically on the parties. Later that day the judge in Birmingham made a further order dismissing the application for an injunction since the petition had already been presented and observing that it would be open to the company to make an application to strike out and stay the served petition (“the second order”). The company appealed against the second order contending that since the petition had not been presented or served before the first order was made, the judge ought to have left the first order in place rather than rescinding it and making the second order.
On the appeal and the question when a winding up petition was “presented”—
Held, appeal dismissed. Although the concept of the presentation of a winding up petition in section 124(1) and the other relevant provisions of the Insolvency Act 1986 was not to be construed to mean something conceptually different from what Parliament had to be taken as having intended when enacting the primary legislation nearly 40 years ago, since the presentation of the winding up petition was connected to the procedural law which applied in the courts, an updating construction was to be applied so as to allow for changes in court procedure and technological developments from time to time, which would allow the concept of presentation of a winding up petition in the 1986 Act to accommodate both the Insolvency (England and Wales) Rules 2016 and Electronic Working Pilot Scheme introduced by CPR PD 51O. Thus, it was not the case that presentation of the petition was, and always had been, synonymous with delivery of the relevant document to the court and that nothing more was required. Rather, although delivery of the document comprising the petition to the court was the core element of the concept of presentation of a petition, it was, and always had been, implicit that presentation meant valid presentation which, as a matter of principle required that such delivery be done in compliance with any statute, rule or practice direction which applied to the presentation, both in respect of mode of delivery and fulfilment of any conditions attached to delivery. On a true construction of rule 7.7(2) of the 2016 Rules, payment of the deposit to the official receiver had to have been made on or before presentation of the winding up petition. So construed, rule 7.7 was consistent both with general approach in CPR PD 51O, para 5.4(2) under which originating processes requiring payment of a court fee would be deemed to be issued when payment was made and with paragraph 9.3 of Practice Direction (Insolvency Proceedings) (revised 2020). In the present case, although the judge had been wrong in his view that the petition had been presented on 12 January in circumstances where the cheque for the payment of the official receiver’s deposit had not been received until 18 January, by the time a sealed version of his first order had been circulated to the BPC office in Manchester on 18 January 2024, the petition had been properly presented, issued (within the meaning of Practice Direction 51O) and delivered to the petitioner (in accordance with rule 7.7(5) of the 2016 Rules) by the BPC office, with the result that the order failed to achieve its intended result. In those changed circumstances, it had been open to the judge to review the first order and, on analysis, the second order had been entirely pragmatic and sensible course for the judge to take (paras 3, 63, 65, 69–75, 77–81, 98–101, 102, 103).
The company appeared by its director, Joe Mulhall.
Micheál Murphy (instructed by Greenhalgh Kerr Solicitors) for the petitioner.