Part 3 - Requests
14.12 Power to request an examination
Note: [s133(2)(a) and Form 4.62 or s290(2) and Form 6.56]
A public examination may be requested by creditors whose claims comprise at least half the total value of known claims, (which includes the claims of secured creditors without regard to the value of their security). The request must be in the prescribed form. It must also be accompanied by a list of the creditors supporting the request, the amounts of their claims in the insolvency proceedings and written confirmation from the supporting creditors that they do in fact support the request, unless the request is made by a single creditor whose claim is alone sufficient to enable him validly to make it.
Notes: [r4.213(1) or 6.173(1)]
In a winding up, a public examination may alternatively be requested by three-quarters in value of the company’s contributories, and the legislation imposes similar requirements as to the form and content of a contributory’s request as apply where a request is made by creditors.
Notes: [s133(2)(b)] [r4.213(1)] [Form 4.63]
Where a winding-up order has been made against a partnership, a public examination may be requested by one half in value of the partnership’s creditors. Where bankruptcy orders have been made against the members of an insolvent partnership on a joint bankruptcy petition without a winding-up order being made against the partnership, a public examination may be requested by one half in value of the creditors of the member to be examined.
Note: [sch 3 part II para 8, sch 4 part II para 11, sch 5 para 2, sch 6 para 4 sch 7 para 9 IPO 1994]
The person(s) requesting a public examination is described as the requisitionist.
Notes: [r4.213(3)] [r6.173(2)]
Unless the court orders otherwise, the official receiver is obliged to make an application to the court for a public examination if requested to do so in accordance with the Insolvency Rules.
Notes: [s133(2)] [s290(2)]
The requisitionist must give reasons as to why the public examination should be held and in a winding up must specify the name of the proposed examinee and his relationship with the company. The official receiver should seek to obtain from the requisitionist details of the areas on which he wishes the proposed examinee to be questioned.
Notes: [r4.213(2) as amended by the Insolvency (Amendment) Rules 2010 or 6.173(1)(c)]
Where the proposed examinee is a person falling within section 133(1)(c) the official receiver is still required to submit a report to justify his reasons for the examination (see paragraph 14.9). If the official receiver is of the opinion that there are no grounds on which the person falls within the provisions of section 133(1)(c), the official receiver should seek relief from holding a requested public examination (see paragraph 14.15 below).
The official receiver may apply to the court for relief from holding a requested public examination if he considers the request to be unreasonable, e.g. where he has sufficient information for the purpose of his inquiries and the requisitionist has not given him adequate grounds for holding an examination. The application may be made without notice to any other party, and if an order for relief is made on an application without notice the official receiver is required to give notice of it to the requisitionist.
The test in rules 4.213(5) and 6.173(4) is a subjective one based on the opinion of the individual official receiver as to whether the request is an unreasonable one in the circumstances. In addition, the official receiver should seek relief where the application relates to a person within section 133(1)(c) and the official receiver is of the opinion that there are no grounds on which the person falls within that section.
If an insolvency practitioner has been appointed as liquidator or trustee, their views as to the usefulness of the requested public examination should be sought although this should not be the overriding factor when deciding whether to apply for relief. The liquidator or trustee can apply for a private examination, without involving the Official Receiver, if he/she requires further information. Private examinations are dealt with in chapter 23.
Note: [r4.213(4) or 6.173(3)]
If the official receiver does not propose to apply to the court for relief from holding an examination, he must within 28 days of receiving the request apply to the court for a hearing date for the examination to be fixed. If he does apply for relief but his application is refused he must apply as soon as reasonably practicable after the conclusion of the hearing of his application for a date for the public examination to be fixed.
Notes: [r4.213(6) or 6.173(5) both as amended by the Insolvency (Amendment) Rules 2010]
Note: [r4.213(3) or r6.173(2) and intranet form PERTR]
The official receiver must obtain a deposit from the requisitionist to cover the costs of the examination. The deposit should not only cover the cost of sending out notices, and giving notice by publication in the Gazette and advertisement where it is proposed to do so, but also any court fees and the estimated costs of the shorthand writer (including his/her attendance). It is difficult to estimate how long any examination will last, but, unless there are unusual circumstances, it should be assumed that it will last for no longer than an hour and the potential costs should be calculated on that basis for the purpose of the deposit. The official receiver’s estimated time costs for preparing for and taking part in the examination are not to be included.
Notes: [r4.217(2) or 6.177(1)]
If the official receiver’s costs increase, a request for an increase in the funds provided as the deposit may be made.
It will be a matter for the court at the conclusion of the examination to order whether the expenses of the examination are to be paid out of the estate rather than from the deposit. The official receiver should in this context inform the court as to the financial position of the estate and indicate whether in his opinion the public examination has produced information not already obtained by other means or has otherwise been a useful exercise.
If the public examination does not take place, there will be no order of the court requiring the official receiver to deduct funds from the deposit and any monies provided by the requisitionist as deposit should be returned.