Kraken Business

Owed money from a bankrupt or a company in liquidation

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Team Kraken

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This guide is aimed at businesses who are owed money by an individual in bankruptcy or company in compulsory liquidation.

It gives information about who deals with bankruptcy and compulsory liquidation cases, and how to ensure you are registered as a creditor. It gives advice on making a claim and how the available money (if there is any) is divided between creditors according to the security and value of debts.

The guide explains creditors’ meetings, appointing a creditors’ or liquidation committee, voting rules at meetings, and the role of The Insolvency Service. The Insolvency Service is the government agency responsible for managing the insolvency process through the official receiver (OR). England and Wales administers and investigates the affairs of partnerships and companies wound up by the courts, as well as bankrupt individuals.

You will find information on payment for the trustee/liquidator handling the case and what happens when the OR or an insolvency practitioner has completed their responsibilities.

Table of Contents

Who deals with bankruptcy and company liquidation claims?

The early stages of a bankruptcy or compulsory liquidation are usually handled by an official receiver (OR). If there are significant assets, an insolvency practitioner (IP) may be appointed as trustee/liquidator in place of the OR.

ORs are civil servants at The Insolvency Service and officers of the court they are attached to. The Insolvency Service is responsible for dealing with financial failure and misconduct through the OR. As well as administering cases, ORs have a duty to investigate the affairs of individuals in bankruptcy and companies in compulsory liquidation.

ORs report evidence of illegal activity to whichever prosecuting agency deals with that type of offence.

IPs are licensed insolvency specialists who work in the private sector – usually as accountants or solicitors. By law, they must be authorised to act as IPs. They handle all other insolvency procedures except fast-track voluntary arrangements and debt relief orders. You can find out more about these procedures in our guides on Fast Track Voluntary Arrangements and insolvency options for individuals: Debt Relief Orders.

Both the OR and IPs are legally required to report unfit conduct to the Investigations andEnforcement Services of The Insolvency Service. They will then decide whether or not to begin court proceedings to disqualify the director or extend the restrictions on a bankrupt.

The trustee in bankruptcy is the OR/IP who takes control of the assets. The trustee’s main duties are to sell these assets and share out the money among the creditors.

The liquidator is the OR/IP appointed to administer the liquidation of a company or partnership.

Trustee or liquidator payment

Payment – known as remuneration – for an OR acting as trustee/liquidator is specified under insolvency law.

An IP’s remuneration as trustee/liquidator is fixed by the creditors’/liquidation committee. If there is no committee, it may be fixed at a meeting of creditors. See the page in this guide on creditors’ meetings and creditors’/liquidation committees.

The remuneration can be fixed as a percentage of the value of the assets realised – sold – and distributed, or on a time basis. If creditors don’t agree a remuneration, the IP gets the same amount that would have been paid to an OR – unless the IP applies to court and arranges a higher amount.

As a creditor, if you think an IP’s remuneration is too high, you may be able to apply to court for it to be reviewed. In order to do so, you would need the support of enough unsecured creditors – ie those without security against non-payment of debt – to account for at least 25 per cent of the total debt value.

Ensuring you are registered as a creditor

If the official receiver (OR) or insolvency practitioner (IP) dealing with the case of someone who owes you money knows that you are a creditor, you should be contacted automatically. All known creditors are normally notified within 12 weeks of the initial bankruptcy or winding-up order.

If you believe a company or individual that owes you money may be subject to insolvency proceedings, and you haven’t been notified, you should write to the OR/IP dealing with it. You should give the full name of the company or individual, as well as your own details.

Any information you can provide about the assets of the company or individual – or about the conduct of the director(s) or individual – would also be useful. This information may help the OR/IP to recover assets or in their duty to report misconduct – see the page in this guide on who deals with bankruptcy and company liquidation claims?

There are various ways of finding out who is dealing with the case:

If a partnership is involved, bankruptcy orders may have been made against individual partners – details of which would be on the Individual Insolvency Register.

Don’t expect frequent updates from the OR/IP. After your claim is filed, you will be sent a report to creditors – which will give you information about the assets and liabilities of the company or individual, and the circumstances of the insolvency. You will be notified automatically of any distribution of money or if no money is available and the case is to be closed.

It can take weeks, months or even years to realise – sell – assets. If you are concerned, contact the OR/IP handling the case. Remember to notify the OR/IP if you change your address.

Making a claim and the order of repayment

If you have been contacted by the official receiver (OR) or insolvency practitioner (IP) who is acting as the trustee/liquidator, then they already have a note of your claim. If you contacted the OR/IP, your details will have been added to the list of creditors.

You will be sent a proof of debt form to complete and return if the OR/IP intends to make a payment to creditors or hold a meeting of creditors – see the page in this guide on creditors’ meetings and creditors’/liquidation committees. The information you provide helps the OR/IP confirm that you are a genuine creditor and the amount you are owed.

Download a company liquidation proof of debt form from the Insolvency Service website (DOC, 37K) – Opens in a new window.

Download a bankruptcy proof of debt form from the Insolvency Service website (DOC, 46K) – Opens in a new window.

Order of priority for repayment of creditors

Secured creditors are the first to get paid when a debtor’s assets are realised – sold or disposed of to raise money. For example, a creditor who holds a fixed charge – a security interest taken to protect against non-payment of debt – or security on an asset such as a mortgage has the right to sell the asset to recover their debt. Any surplus money is then handed over to the trustee/liquidator.

After the secured debts have been repaid, the trustee/liquidator distributes the remaining proceeds to pay the following – in strict order of priority:

  • Liquidation/bankruptcy fees and charges – this does not include court fees.
  • Debts due to preferential creditors – those entitled to certain payments in priority over other unsecured creditors – including wages owed in the four months before the date of the insolvency order, up to a maximum of £800, as well as all holiday pay and contributions to occupational pension schemes.
  • In company cases, any creditor holding a floating charge over an asset, such as a debenture. This is where a class of goods or assets – eg the debtor’s stock – are named as security for a debt.
  • All unsecured creditors.
  • Any interest payable on debts.
  • The shareholders in company cases.

If full repayment of unsecured claims isn’t possible, the money available is divided between creditors in proportion to the value of each claim. If such a dividend is to be paid, the OR/IP will notify all creditors they have addresses for. If you haven’t already done so, this may be your last chance to submit a proof of debt form before you lose your right to a share of the money available at that time.

How much you are paid will depend on the amount of money that can be realised and the number of claims. If there are few assets, you may not get anything.

If you wish to see a full list of creditors showing how much each is owed, you can ask the OR/IP for this. The OR/IP is allowed to charge a fee for this service. Alternatively, you have a right to view the court file – unless the court directs otherwise.

If a statement of affairs has been submitted, the OR/IP will direct you to the court file. A statement of affairs is a document completed by a bankrupt, company officer, or director(s) stating the assets and giving details of all debts and creditors.

When paying a dividend, the OR/IP can reject the whole or part of a creditor’s claim but must give reasons for doing so in writing. If you are dissatisfied with the decision on your claim, you can apply to the court in which the bankruptcy or winding-up order was made for it to be reversed or varied. However, before applying to court, you may wish to take legal advice.

Creditors’ meetings and creditors’/liquidation committees

The official receiver (OR) usually decides to hold a first meeting of creditors if there are significant assets to be realised – ie sold. This is so creditors can vote to appoint an insolvency practitioner (IP) as trustee or liquidator.

For information about voting procedures, see the page in this guide on conduct and voting at creditors’ meetings.

If the OR doesn’t believe the assets available are enough to attract an IP, the OR will send notice to all creditors that no first meeting is to be held and that they will be the trustee/liquidator.

The OR must hold a first meeting if it’s requested, in writing, by enough creditors to account for at least 25 per cent of the value of debt owed. Creditors requesting a meeting have to lodge a deposit to cover any costs of that meeting. If the creditors don’t choose an IP at the meeting, the OR can apply to the Secretary of State to make an appointment or remain as trustee/liquidator.

The OR can also apply to the Secretary of State when an appointment of an IP is needed in an emergency – eg to deal with urgent transactions involving assets. When this happens, the IP must let creditors know about the appointment. If there are a large number of creditors, this may be done by publishing a notice in the London Gazette.

Find out about the London Gazette on the London Gazette website – Opens in a new window.

Further meetings of creditors – called general meetings – are sometimes held, if:

  • requested by enough creditors to account for at least 25 per cent of the value of debt owed
  • the trustee/liquidator wants to find out the creditors’ wishes in any matter relating to the insolvency proceedings

Where an IP is trustee/liquidator, a final meeting of creditors will eventually be called – see the page in this guide on completion of bankruptcy and company liquidation cases.

Appointing a creditors’/liquidation committee

Where an IP is appointed, a creditors/liquidation committee can also be appointed to supervise the trustee/liquidator on behalf of the creditors. In liquidations – it’s called a liquidation committee, in bankruptcies – it’s called a creditors’ committee.

The committee consists of between three and five elected creditors. You have a right to nominate yourself or any other creditor to be a committee member, and you can vote for yourself. The elected creditor can act personally, or appoint a representative.

If certain actions are proposed by the trustee/liquidator, they need to be approved by the creditors’/liquidation committee.

Conduct and voting at creditors’ meetings

At a first meeting of creditors, the chair – usually the official receiver (OR) or one of their deputies – will check that everyone present is allowed to be at the meeting, explain its purpose and give details about the insolvent’s assets. The meeting then votes on the appointment of an insolvency practitioner (IP) as trustee or liquidator. The meeting isn’t an opportunity to question the bankrupt/director – who is unlikely to be at the meeting – or to discuss matters relating to the insolvency.

You can normally only vote at a meeting if you returned your proof of debt form to the OR within the time limit specified. For more information on proof of debt forms, see the page in this guide on making a claim and the order of repayment.

If you won’t be attending the meeting and would like someone to vote on your behalf, you must submit a proxy form. You will find the proxy form supplied with the OR’s notice that the creditors’ meeting has been called. You must return it by the date specified. The proof of debt and proxy forms must be signed by the same person.

Voting at a meeting of creditors is by value. This means certain voters may have more than one or a greater proportion of the vote – dependent on the amount of money they are owed. The chair will calculate this after checking the proofs of debt and proxy forms that have been submitted.

For an IP to be appointed by the meeting of creditors, the vote must be supported by a majority in value – relating to the total debt owed.

Completion of bankruptcy and company liquidation cases

If an official receiver (OR) is dealing with the insolvency case for which you are a creditor, they will inform you when they have completed the insolvency. The OR will then apply to the Secretary of State for release and their role as trustee/liquidator ends. You will also be sent a summary of the OR’s receipts and payments as trustee/liquidator.

As a creditor, you can object to the OR’s release. Generally, the OR’s release can only be withheld if they have failed to realise – sell – assets that were available to be realised, or have misapplied the proceeds of any assets realised. Please note that the release of the OR as trustee isn’t relevant to – and doesn’t affect – a bankrupt’s discharge.

If an insolvency practitioner (IP) is dealing with the case, you will be invited to the final meeting of creditors. At this meeting, the IP will report on how they have handled the case and give a summary of the receipts and payments. The creditors may question the liquidator about what is in the report and have the option of either granting or refusing the release of the IP.

What legal action can I take against the bankrupt, company or the trustee/liquidator?

After the date of the court order, unsecured creditors cannot take any action against the bankrupt or company without the court’s consent. You must submit your claim to the trustee/liquidator. You can apply to the court if you are dissatisfied with the actions of the OR/IP. Before you apply to the court you may wish to take legal advice.

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Every effort has been made by the author(s) to ensure this article’s accuracy but it does not constitute legal advice tailored to your circumstances. If you act on it, you acknowledge that you do so at your own risk. We cannot assume responsibility and do not accept liability for any damage or loss which may arise as a result of your reliance upon it.

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