When a winding-up petition is withdrawn or dismissed

Many winding-up petitions do not end in a winding-up order. The debt is paid, the company shows that it is disputed, the petitioner does not go on, or another creditor takes over. The Insolvency (England and Wales) Rules 2016 set out how each of these happens, and each leaves a different trace on the public record.

Withdrawal, before the petition is advertised

A petitioner cannot simply withdraw a petition. Rule 7.13 lets the court give permission to withdraw only if the petitioner applies at least five business days before the first hearing and satisfies the court that:

• notice of the petition has not yet been given in The Gazette;
• no notices supporting or opposing the petition have been received; and
• the company consents.

So withdrawal is possible only early, usually because the debt has been settled soon after the petition was served. A petition withdrawn this way was never advertised. It leaves no trace in The Gazette or on the Companies House register, though the court keeps its own record of it.

Dismissal

Once a petition has been advertised, it ends without an order by being dismissed at a hearing. The usual reasons are that the debt has been paid, that the company has shown a substantial dispute about it, that the petition was defective, or that the petitioner did not pursue it. The court can also dismiss a petition where the petitioner has not complied with the rules on serving and advertising it, or has not filed the certificate of compliance due five business days before the hearing (rules 7.10 and 7.12).

Under rule 7.23 the petitioner must give notice of the dismissal as soon as reasonably practicable, in The Gazette or as the court directs. The notice states the date the petition was presented, the date it was advertised and the date of the hearing. If a creditor petitioner has not given the notice within 21 days of the hearing, the company may give it itself. A dismissal records the court’s decision and nothing else: it does not show that the debt was never owed, nor that it was.

Adjournment

Hearings are often adjourned, to let the company pay, to let evidence be filed, or to let another creditor come forward. The petition continues. Under rule 7.19 the petitioner must tell the company, and any creditor who gave notice of intending to appear but did not attend, the date and place of the adjourned hearing. A company that wants to oppose the petition must file its witness statement at least five business days before the hearing (rule 7.16).

Substitution: when another creditor takes over

Paying the creditor who petitioned does not always end the matter. Under rule 7.17 the court may substitute another creditor or contributory as petitioner, if that person could have presented a petition and wishes to pursue it, where the original petitioner:

• turns out not to have been entitled to petition;
• fails to advertise the petition;
• agrees to withdraw it, to let it be dismissed or to an adjournment, or does not appear to support it; or
• appears but does not ask for the winding-up order.

It is one reason other creditors watch The Gazette and give notice that they support a petition: a company that pays one petitioning creditor can still be wound up on the petition if another creditor is owed and steps in.

Stopping a petition before it starts

Where a company says a threatened petition concerns a debt it genuinely disputes, it can ask the court for an injunction restraining the presentation of the petition, or its advertisement (rule 7.24). The courts treat a winding-up petition as the wrong way to collect a disputed debt, because advertisement alone can do a solvent company serious harm.

What the record keeps

• Withdrawn before advertisement: nothing in The Gazette or on the register.
• Dismissed: the petition notice and, usually, a notice of dismissal in The Gazette. The Companies House register is unchanged.
• Adjourned or taken over: the original petition notice. The outcome comes later, in a dismissal notice or a winding-up order.
• A notice that should not have appeared: the Gazette sometimes publishes a later notice withdrawing an earlier one, or one replacing an earlier notice with a corrected version. Read the later notices for the company before relying on the first.

On the register, a company petitioned and dismissed several times looks the same as one never petitioned at all. The Gazette is the only public place that history is kept.

In a report

A Check the Director report shows both kinds of Gazette notice for every company the person has been an officer of: the petition to wind the company up and the dismissal of such a petition, each with the date it was advertised and a link to the notice. Read together with the dates of the person’s appointment, they show whether the company was petitioned while the person was in office. Neither kind of notice is one of the report’s criteria, and the report does not say why a petition was dismissed. See winding-up orders for what happens when a petition succeeds.

This guide describes the public record in general terms, for England and Wales unless it says otherwise. It is not legal advice.