(Amended October 2010)
This chapter contains only a brief description of the public examination as a method of enforcing co-operation. The practices and procedures relating to public examinations are covered fully in Chapter 14 - Public examinations.
If the public examination is an attempt to ensure attendance at an interview, at least three attempts must have been made to arrange an interview and advise the officer, bankrupt or partner of the need to attend for interview, and the consequences of non-attendance.
In a company or a partnership a public examination should not be called simply because of non-surrender or non co-operation of a director to the proceeding. Public examinations should only be held where there is a genuine intention to question the director over specific matters, such as the whereabouts of assets, as well as to enforce co-operation (see paragraph 13.52).
Note: [r4.215(1), r6.175(1)]
The examination is conducted in open court, under oath. The examinee must answer all questions put to him/her. Other parties such as creditors may also ask questions.
Note: [r4.212 as amended by the Insolvency (Amendment) Rules 2010, r6.172 as amended by the Insolvency (Amendment) Rules 2010]
The official receiver may publish notice of the public examination in the Gazette and advertise in any other manner, as he/she thinks fit. The notice must appear at least 14 days before the date fixed for the hearing.
In a winding up where the petition was before 6 April 2010, unless the court otherwise directs, a notice of the public examination may not appear before at least 7 days have elapsed since the examinee was served with the order.
For post 6 April 2010 winding-up petition cases, where the public examination is of a person who has been concerned, or has taken part in the promotion, formation or management of the company but is not or has never been an officer of the company and has not acted as liquidator or administrator, unless the court otherwise directs, there shall be no publication before at least 5 business days have elapsed since the examinee was served with the order.
Notes: [r4.212(3) and (4)] [s 133(1)(c)]
A company officer, partner or bankrupt may start to co-operate only after they are made aware of the procedures at a public examination in order to avoid attendance at court. In some cases a letter detailing precisely the events at a public examination may be sufficient to encourage co-operation. On other occasions the public examination may prove to be the only means to obtain information.
(Amended October 2010)
The official receiver may apply to the court for the public examination of ;
In a winding up,
Note: [s133(1)(a) and CA2006 s1121(2)]
a) any past or present officer of the company, including any person occupying the position of director, by whatever name called and in certain circumstances the company’s auditor (see Chapter 12 Part 2 -statement of affairs)
b) any liquidator, administrator, or receiver and manager of the company;
c) any person who is, or has been, concerned or has taken part in, the promotion, formation or management of the company.
Note: [r4.211(2) as amended by the Insolvency (Amendment) Rules 2010]
If the proposed examinee is not an officer, or former officer, liquidator, administrator, receiver or manager, the application must be accompanied by a report by the official receiver indicating:
d) a partner
Note: [IPO94 sch 3,part II para 8, sch 4 part II para 11, sch 7 para 9]
e) a bankrupt
The person to be examined is described as the examinee.
The official receiver may make an application for the public examination of an individual as detailed in paragraph 13.34 at any time before the discharge of the bankrupt or the dissolution of the company as appropriate.
Notes: [s290(1)] [s133(1)] [r6.175(1) or 4.215(1)]
Note: [r6.175(6) or 4.215(6)]
The court may order an adjournment of the public examination if criminal proceedings have been instituted against the examinee and the court believes that continuing the examination would prejudice a fair trial of those proceedings.
The examinee may not refuse to answer a question on the ground of self-incrimination (Bishopsgate Investment Management v Maxwell  BCC 222). However, an examinee's answers obtained under compulsion cannot generally be used as evidence in any subsequent criminal proceedings (Saunders v United Kingdom  EHRR 313) (see Chapter 47 Part 1 and Part 5 - Disclosure).
Note: [s134(1) and (2) or 290(5) and 364(2)(e)]
Failure to attend for public examination is a contempt of court, which may lead to the issue of an arrest warrant (see Part 3) but also gives rise to a separate power of arrest which can be exercised by the court by the issue of an arrest warrant, without the need for reference to a judge, immediately the public examination is adjourned generally (see Part 7 and Chapter 14 Part 8 - Public examinations). The court can also order the seizure of any property or records in the possession of the person concerned.
Notes: [s134(2)(b) or 364(1)(b)]
(Amended October 2010)
Pre 6 April 2010 petition cases:
Warrants issued under section 134(2) or section 364 (including those issued for non-attendance at a public examination) are issued under general powers of arrest and must be on Form PEWA (companies) or Form PEWA (bankruptcy). In order to avoid the concerns of some courts regarding the human rights implications of ‘open ended’ arrest warrants, generally the official receiver should ensure that the terms of the warrant require that the subject of the warrant be delivered to the court rather than to a prison as soon as they have been arrested. The forms on Document Production are amended to reflect this (see paragraph 13.76 in Part 7 for more information).
The forms also allow for records etc. to be seized under the terms of the warrant. If this is not required, that option should be deleted from the form
Post 6 April 2010 petition cases:
The Insolvency (Amendment) Rules 2010 (IAR) changed rule 7.22 for post 6 April 2010 petition cases. Warrants issued under amended rule 7.22 allow for delivery of the arrested person directly to the court. Only in the event that the court is not ready and able to deal with the arrested person must he/she be given into the custody of the governor of the prison named in the warrant (or where that prison is not able to accommodate the arrested person, the governor of such other prison with appropriate facilities). Where an arrested person is held in prison he/she must be brought before the court at its next sitting. The amendments to rule 7.22 reflect the concerns of the courts in relation to the human rights issues of confinement.
In addition, the prescribed forms, Forms 7.6 and 7.7, have been deleted from the Rules and accordingly the document production form for warrants (PEWA) is no longer available for post 6 April 2010 petition cases. Until such time that new forms are devised by the Ministry of Justice, official receivers should obtain the necessary forms from the court and adapt these as appropriate. Alternatively, the court may be happy to accept a warrant drafted by the official receiver using the wording of the old form PEWA.
Notes: [r7.22 as amended by the Insolvency (Amendment) Rules 2010] [Form PEWA and Form WARPD – for pre 6 April 2010 petition cases only] [County Court Civil Forms N288 (Order to produce prisoner) and N40A (Warrant of Arrest) – for post 6 April 2010 petition cases]
Where a winding up order has been made an order may be made for the public examination of a director regardless of his/her nationality and present residence (Re Seagull Manufacturing Co Ltd  3 WLR 307). By analogy, that may also apply to bankruptcy cases.
See Part 8 for the procedure to be followed if it is believed a person is about to abscond in order to avoid attending his/her public examination.
Note: [s133 or s236 and s290 or s366]
The official receiver can either apply for a public or private examination of an officer of a company in liquidation or a bankrupt. Public examination has advantages for the official receiver over private examination. The court has discretion whether or not to order a private examination, whereas it has no discretion but to make an order for the public examination on the application of the official receiver. An order for a public examination is extra-territorial (see paragraph 13.39), whereas an order for a private examination only has partial extra-territoriality at best.
If the official receiver is making an application for a private examination in his/her capacity as liquidator or trustee, he/she may be made personally liable for the costs of the examination.