Part 3

Private examination – the application

March 2011 

23.34 The format of the application

The official receiver’s application to the court shall be in writing and must specify the grounds on which it is being made [Note 1]. The application must also specify the name of the respondent [Note 2]. See Paragraph 23.38 for further information on the content of the application.

 

23.35 Official receiver’s liability for costs

The official receiver may be made personally liable for costs if he/she makes an application for the production of documents or a private examination as a liquidator or trustee. To avoid this possibility the official receiver should ensure that the reasons for the application are related to the official receiver’s statutory office, (paragraphs 1.4 and 1.4A provide further information regarding the official receiver as a statutory office holder), or that of provisional liquidator or interim receiver, if acting in that capacity (see also paragraph 23.54) [Note 3].

 

23.36 Purpose of the application

The official receiver’s application must specify whether the respondent is required to do any of the following:

• to appear before the court;
• to clarify any matter which is in dispute in the proceedings or give additional information in relation to any such matter (the court may direct that the information provided must not be used for any purpose except for that of the proceedings in which it is given [Note 4]);
• to submit witness statements; particulars should be given of the matters to be included; or,
• to produce books, papers and other records; the relevant records should be specified [Note 5].

The application may specify two or more of the above actions [Note 6].

 

23.37 Notice of the application

The official receiver’s application may, and normally should, be made without notice to any other party [Note 7].

 

23.38 The contents of the application

The official receiver’s application must be made on Form PVTEXO and will include the grounds on which it is being sought, for example, to ask a bank to produce copies of statements on a bankrupt’s bank account. The application is open to inspection by the respondent [Note 8].

 

23.39 Where the grounds for the application are not considered confidential

If the official receiver believes there is no need for the grounds of the application to remain confidential he/she should set out the full grounds for the application and consider disclosing it voluntarily to the respondent.

 

23.40 Where aspects of the application are considered confidential

Following the advice provided in the ruling in Re British & Commonwealth Holdings plc (Nos. 1 and 2) [1992] Ch. 342 the official receiver should include in the application a brief summary of the grounds for his/her application excluding any information considered confidential. The information considered confidential should be set out in an annex to the application together with the reasons why the official receiver considers that this material should remain confidential. The official receiver should request the court not to place the annex on the court file.

 

23.41 The court’s decision

An order for the production of documents or a private examination is a matter for the court’s discretion. The official receiver should provide sufficient information in his/her application (and any annexes) to satisfy the court that it is appropriate to make the order. The court is unlikely to make an order where it appears to be vexatious or oppressive (i.e. excessively harsh or burdensome) to the respondent. The court must also balance the importance to the applicant of obtaining the information against the degree of oppression placed on the respondent [Note 9].

 

23.42  Other matters that will be considered by the court

British & Commonwealth Holdings plc (Nos. 1 and 2) provided some guidelines to the court in exercising its discretion. The court in making its decision should consider the following matters:

• the case for making an order against an officer or former officer of a company will usually stronger than it would be against a third party. Company officers owe a fiduciary duty to the company and are under a statutory duty to assist the insolvency officer-holder [Note 10] (bankrupts [Note 11], and debtors who have applied for a debt relief order [Note 12], have a similar statutory duty to the official receiver);
• whether the respondent, by giving the information sought, risks exposing himself/herself to liability involving an element of oppression;
• whether an order for an oral examination is more oppressive than an order for the production of documents; and
• if the respondent is suspected of wrongdoing, especially fraud, it will be oppressive to require him/her to prove the case against himself/herself on oath before any criminal or disqualification proceedings are brought.

However, if criminal  proceedings have started or are about to start against the respondent the court may still make an order. To enable the court to reach a decision in this instance the official receiver should provide a list of topics to the court upon which he/she wishes to question the respondent [Note 13].  

 

23.43 Where the court makes an order

After considering the official receiver’s application if the court makes an order for a private examination it will specify the time and date of the private examination, which will be at least 14 days from the date of the order, and the place where it will be held [Note 14]. If the respondent is ordered to submit witness statements, it will specify what must be covered in those witness statements and when they must be submitted to the court [Note 15]. If the order is to produce books, papers or other records, it will specify the time and manner in which they are to be produced [Note 16].

 

23.44  Service of the order

Any order which the court makes on the official receiver’s application must be served on the respondent as soon as practicable, this must be by personal service unless the court orders otherwise [Note 17]. The official receiver after service must complete a certificate of service, which can be obtained here.

 

23.45 Shorthand writer

Where the official receiver applies for a oral examination he/she should also apply for the appointment of a shorthand writer to take down the evidence (see also Chapters 14 Part 9 and 32.3 Part 2) [Note 18].

 

23.46 Withdrawal of the official receiver’s application

In certain instances the threat of an application for the production of documents or a private examination may result in the requested information being supplied before the application is made. Where this occurs the official receiver should inform the court and seek permission to withdraw the application.

 

23.47 Rescission of the court order

In certain instances when an order for a private examination is served on the respondent, the requested information may be supplied, for example a bank will normally allow inspection of accounts on production of the court order. Where the information sought is given, or the required documents are surrendered, or there is an admission of indebtedness due to the insolvent, the official receiver should ask the court to rescind the order [Note 19]. The shorthand writer should also be informed that the examination will not proceed.

 

[Back to Part 2 Private Examination – the application] [On to Part 4 Private examination – the hearing]