A compulsory liquidation is one instituted by the Courts as
a result of a petition to the court by an interested party. The appropriate
Courts for such actions are the Courts of Chancery Division of the High Court
(including the eight regional district registries), or county Courts having
insolvency jurisdiction where the paid up share capital of the company
concerned does not exceed £120,000 and its registered office is within the
Court’s district.
A petition may be presented by the company, the directors, a
creditor or a contributory. Contributory means every person liable to
contribute to the assets of a company on winding up, including those claiming
to be contributories prior to determination of such claims. A contributory may
normally petition only if the number of members has been reduced below two, or
if he had acquired shares by allotment or as a result of the death of a
previous shareholder, or if he has been a member for at least six months in the
previous 18 months. However, a person who is a contributory by virtue of being
a party to the redemption or purchase of the company’s shares may petition on
the grounds that the company is unable to pay its debts, or that it is just and
equitable that the company should be liquidated. An administrator or
administrative receiver has the power to present a petition for the winding up
of certain companies including the Secretary of State for Trade and Industry,
the Official Receiver and the Bank of England.
The most common form of petition is by a creditor on the
grounds that the company is unable to pay its debts. Whilst the Court may
determine whether a company is unable to pay its debts, a company is deemed to
be in this position if an execution of a judgement debt is unsatisfied, or if
the company fails to pay a statutory demand. It is sufficient for a creditor
for a debt exceeding £750 to serve a demand for payment at the company’s
registered office; if the debt is not disputed, the failure to pay within three
weeks will constitute inability by the company to pay its debts for this
purpose. At the time the petition is presented to the Court a date for a
hearing is fixed and the petition must then be served at the company’s
registered office unless the petitioner is the company. The petition has to be
advertised in the London Gazette not less than seven business days after it has
been served and not less than seven business days before the date of the
hearing.
Circumstances may arise in which it is necessary for action
to be taken in respect of a company’s assets or business in the period after
the presentation of the petition but before the hearing, and the Court has the
power to appoint a provisional liquidator during this period. Such an
appointment may be made upon application of the company, a creditor, or a
contributory. If the provisional liquidator is an insolvency practitioner he
must file a bond, to cover the value of the assets, in Court. Where the Official
Receiver has been appointed provisional liquidator (or liquidator after a
winding-up order) he may consider that the nature of the company’s assets or
business is such that a manager is required to administer the estate and he may
apply to the Court for the appointment of a special manager, who will be given
specific powers by the Court. Further more in the interim period, the company,
a creditor or a contributory may apply to the Court for any proceedings being
taken against the company to be stayed.
When the petition is heard, the Court may grant the petition
by making a winding-up order or dismiss it, adjourn the hearing or make any
interim order or other order that it thinks fit. When the winding-up order has
been made, for the purposes of considering the validity of prior transactions,
the liquidation is deemed to have commenced from the date of the presentation
of the petition (unless it had already commenced by virtue of a resolution
passed by the company for voluntary liquidation). Following a windingup order,
no action can be commenced or proceeded with against the company without leave
of the Court which made the order.
A winding-up order may be made on the petition of an
administrator (seeking discharge of the administration order) or of the
supervisor of a voluntary arrangement in which cases the Court has the power to
appoint the former administrator or supervisor, respectively, as liquidator.
Otherwise the Official Receiver will automatically become liquidator. It is a matter
for the Official Receiver, whether he is liquidator or not, to decide whether
to require the submission of a statement of affairs by the directors and/or
others.
Where the Official Receiver is liquidator, within 12 weeks
of the winding-up order being made he is required to decide whether to convene
separate meetings of creditors and contributories, for the purpose of choosing
an insolvency practitioner as liquidator. If he decides not to hold meetings,
notice must be given within the 12 weeks to the court, creditors and
contributories. Such meetings must be held if requested by one quarter in value
of the creditors, within three months of the request.
The Official Receiver or his nominee acts as chairman of the
meetings, and provides a report on the history of the company and any other
information available, and each meeting can make its choice of a liquidator in
place of the Official Receiver. The quorum for a meeting of creditors is at
least one creditor present in person or by proxy and entitled to vote and that
for a meeting of contributories is at least two or all if there are not more
than two, similarly present and entitled. For a resolution of either meeting to
be valid it must be passed by a majority in value of those voting. At the
creditors’ meeting the value of votes cast is determined by the proofs of debt
as admitted by the Official Receiver, and at the meeting of contributories the
value is determined in accordance with the company’s Articles of Association.
It should be noted that a creditor who does not submit a proof of debt as
directed in the notice convening the meeting is unable to vote. Forms of proxy
are required in the prescribed form.
In the event of different persons being nominated in place
of the Official Receiver at the respective meetings, the creditors’ nominations
will become liquidator. If this happens, any contributory or creditor may
appeal to the Court within seven days of the meeting, applying for the
contributories’ nomination to be liquidator instead of, or jointly with, the
person appointed or for some other person to be liquidator. When the person
nominated has provided a written statement that he is qualified to act as an
insolvency practitioner and consents to act, the chairman of the meeting will certify
the appointment and the appointment will date from that certificate.
Any such meeting which passes a resolution for the
appointment of a liquidator may also resolve to establish a liquidation
committee from the creditors and/or contributories. A first meeting of this
committee will usually be held immediately after the creditors’ meeting to
establish the frequency of meetings and to resolve any immediate matters. The
functions of the liquidation committee include: sanctioning continuation of the
directors’ powers, if any, as may be considered appropriate (these powers
otherwise cease on the appointment of the liquidator): approving the payment of
any class of creditors in full: approving compromises with creditors: receiving
reports from the liquidator on the conduct of the liquidation: determining the
basis of the liquidator’s remuneration. A committee member can be represented
by someone else at committee meetings and can be reimbursed reasonable travel
expenses.
Where an insolvency practitioner is liquidator but there is
no committee, the functions conferred on the committee are vested in the
Secretary of State for Trade and Industry and may be exercised by the Official
Receiver.
At any time that the Official Receiver is the liquidator, he
may apply to the Secretary of State for Trade and Industry for the appointment
of an insolvency practitioner as liquidator in his place. The Official Receiver
may do this if meetings have been held but have not resulted in an appointment
or if there are other exceptional circumstances.
In a compulsory liquidation, the Official Receiver is
responsible for filing a report with the Secretary of State for Trade and
Industry on the conduct of the directors under the Company Directors
Disqualification Act 1986. In addition, the Official Receiver has a duty to
investigate the causes of the company’s failure and its affairs generally and
if necessary make a report to the Court, regardless of whether he is the
liquidator.
A liquidator other
than the Official Receiver must notify his appointment to the Registrar of
Companies and obtain a bond to cover the value of the assets of the company. If
appointed by meeting, the liquidator must advertise his appointment in a
newspaper appropriate to the creditors and contributories with a copy to the
Court. If appointed by the Secretary of State for Trade and Industry or by the
Court, the liquidator must give individual notice to the creditors and
contributories.
The liquidator may operate a local bank account if he
intends exercising his power to carry on the company’s business, but only with
the approval of the Secretary of State for Trade and Industry. Otherwise, the
liquidator must pay all sums received by him into the Insolvency Services
Account held by the Secretary of State for Trade and Industry at the Bank of
England.
If the balance held at the Bank of England exceeds £2,000
and the excess is not required for the immediate purposes of the liquidation,
the liquidator may request that the surplus is transferred to an interest
bearing account. Further, surplus funds that are not required for the immediate
purposes of the liquidation may be invested in government securities.
The liquidator is given statutory powers and duties to
enable him to conduct the liquidation and he will or can do the following:
If all the above claims are paid in full, interest is
payable at 15%.
The liquidator is required to submit details of his receipts
and payments to the Secretary of State for Trade and Industry for each year
beginning with the date of the winding-up order. There is also a provision for
the account to be sent to any director or contributory on request.
If a sole liquidator other than the Official Receiver
resigns, dies, is removed or loses his qualification as an insolvency
practitioner, and is not replaced, the vacancy is filled by the Official
Receiver.
When the liquidator has realised all the assets, made all
necessary distributions and reconciled his account with the Secretary of State
for Trade and Industry, he convenes a final meeting of creditors by individual
notice which is advertised in the London Gazette and copied to the Official
Receiver. The liquidator must give notice of the result of the meeting to the
Court (with a copy of the report laid before the meeting), with a copy to the
Official Receiver. Notice must also be given to the Registrar of Companies.
Within 14 days of the final meeting, a receipts and payments
account covering the period since the date of the previous account must be sent
to the Secretary of State for Trade and Industry.
If the final meeting of creditors does not resolve against
his release or there is no quorum, the liquidator is released from the time
notice is given to the court. If the final meeting of creditors resolves
against his release, the liquidator must apply to the Secretary of State for
Trade and Industry for his release.
The company is normally dissolved three months after the Registrar of Companies receives the notice that the final meeting has been held. Any person appearing to the Court to be interested may apply for a declaration that the dissolution of the company be void, within two years of the dissolution. This period is extended without limit, but subject to relevant statutory limits, in the case of claims for damages in respect of personal injuries or fatalities.