You may apply for the rescission of a bankruptcy order or appeal against the decision of a court in relation to any decision relating to bankruptcy – but you will require permission to appeal.
What is the rescission of a bankruptcy order?
The bankruptcy court has the power to review, vary or rescind any order it has made in the exercise of its jurisdiction.
- An application is not an appeal as such and the court is free to consider any new material that was not before it when the order was originally made.
- The court may rescind a bankruptcy order if there are exceptional circumstances justifying the exercise of the court’s discretion and that there is a material difference to the position as it was known to the court when the order was originally made.
How to obtain a rescission of a bankruptcy order
You have to apply to the court:
- You must issue an application
- You must file a witness statement with the correct information and evidence
- You must pay the applicable court fee.
The court will set a date for the hearing. The application and witness statement must be served on the petitioner, any supporting creditors who were heard on the petition, the Official Receiver and on the trustee in bankruptcy if one has been appointed. These documents must have been correctly served at least 14 days before the hearing. However, the court has the power, in cases of urgency, to hear an application immediately, with or without notice to the other parties.
If, at the hearing, the court is satisfied that one of the grounds for rescission has been made out then the bankruptcy will be set aside.
If the bankruptcy is rescinded, forms should be filed with the Land Charges Registry to remove the bankruptcy entries on the register.
Appeal
An appeal from an Insolvency and Companies Court Judge is made to a High Court Judge and an appeal from a District Judge will be to either an Insolvency and Companies Court Judge or a High Court Judge depending on where the first instance case took place.
- Permission needs to be obtained from the Judge being appealed. If this is refused, then you must apply for permission from the Judge to whom you are appealing in your appellant application.
- The notice of appeal must be filed with the correct court within 21 days of the date of the decision being appealed against.
- The person appealing must also file a copy of the order under appeal, a time estimate for the appeal hearing, a chronology of events, an approved transcript or note of judgement and a skeleton argument.
- There is a court fee of £240.
- The appeal notice must be served on the respondent within 7 days of filing with the court.
If the appeal is opposed, the respondent must file a notice in reply within 14 days of receipt of the Notice of Appeal and serve this on the appellant within 7 days.
There will then be a hearing before the High Court. The appeal is limited to a review of the decision of the lower court and will only be allowed if the decision was wrong or unjust because of a serious procedural irregularity or other irregularity in the proceedings.
Appeal from the High Court, if permission is obtained, is to the Court of Appeal.
Taking legal advice
Preparing for and conducting legal argument for rescission of a bankruptcy order or an appeal before a High Court Judge will normally require expert advice and representation, possibly with the assistance of specialist counsel. We can help you by advising on the legal issues and prospects of success and where appropriate preparing the documents and instructing a barrister to put your case. There are cost consequences of an appeal and we give you commercial and pragmatic advice in this respect as well as advising on the law.
For more information proceed to The bankruptcy hearing
For more information, please contact our team of experts by emailing insolvency@bankruptcy-solicitors.com or call 020 8308 3610 today.