What it means to undertake not to advertise a winding-up petition

In a recent petition heard by ICC Judge Barber in the Insolvency and Companies List a set of facts arose which are worthy of consideration by those faced with winding-up petitions and supporting creditors.

We are leading experts specialising in insolvency proceedings. Our experienced City of London solicitors and barristers regularly assist companies seeking to obtain an injunction to restrain presentation of a winding-up petition; companies facing a winding up petition; or creditors owed money and considering issuing a winding up petition. 

In Re A Company, a creditor – who was also a shareholder in the Respondent company – presented a petition to wind up the Company. A few days after presenting that petition, the petitioner gave a solicitor undertaking not to advertise the petition. The Company paid the petition in full during the lifetime of the undertaking and the petition was never advertised.

Despite the fact that the petition was not advertised, the petitioner refused to apply for leave to withdraw the petition; instead demanding that the hearing take place. At the said hearing, the Company was faced with two supporting creditors who applied to take carriage of the petition; despite the fact that the petition had been paid prior to advertisement and despite the fact that the petitioner had undertaken not to advertise the petition.

The Company argued that the petition ought to be dismissed; and that the supporting creditors’ application to take carriage of the petition equally ought to be dismissed as there had been a breach of the solicitors’ undertaking not to advertise the petition.

The petitioner sought to argue that the undertaking not to advertise meant not to advertise in the London Gazette. ICC Judge Barber was quick to reject that submission holding, in line with well-established case law, that an undertaking not to advertise meant not to take any step to notify third parties of the existence of the petition. Clearly, in this scenario, the petitioner had notified third parties.

What made the position stranger still was that the petitioner was also a director of one of the supporting creditors, and the joint executor of the other. Thus, argued the petitioner, she had not ‘notified’ anyone she was using her own knowledge of the petition. Again, ICC Judge Barber rejected her plea to allow one of the supporting creditors to take carriage, reaffirming her earlier conclusion that no notice to a third party ought to have been given during the lifetime of the undertaking.

In those circumstances the petition was dismissed as was the supporting creditors’ application to take carriage of the petition as a direct result of the breach of the undertaking not to advertise. Moreover, the petitioner’s costs were severely curtailed. The petitioner was not entitled to any costs which she had incurred after the date on which the petition debt had been fully paid.

This case serves as a useful reminder that it is possible to challenge an application to take carriage of a petition; and also serves as a reminder that an undertaking not to advertise the petition means that no steps – at all – ought to be taken to notify third parties of the existence of the petition.

Facing a winding up petition? Need Legal Advice?

If your company is concerned about a winding-up petition or statutory demand from a creditor your company can potentially challenge that petition. For further details on how a company can obtain an injunction to restrain presentation of a winding-up petition, see our page here.

As a leading law firm with a track record of success, you can be assured that your matter is in safe hands. Our success rate is a result of the dedication of our lawyers who will diligently review your matter so it has the best possible chance of success from the outset when it matters the most.

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We’re masters of insolvency dispute litigation. We are a specialist City of London law firm made up of Solicitors & Barristers. We’re based in the Middle Temple Inns of Court (next to the Royal Courts of Justice where the High Court and Central London County Courts are based).  We’re experts in dealing with matters surrounding insolvency in particular our team have unparalleled experience at both issuing and defending winding up petitions vigorously at the Royal Courts of Justice (Rolls Building), or the relevant High Court District Registry or County Court with jurisdiction under the Insolvency Rules. We provide a quick no cost initial telephone case review to establish whether or not we can help you; just call one of our team on 02071830529.

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